Daytona crash video tests fair use, copyright for fans and journalists

NASCAR’s attempt to have a fan video of Saturday’s horrific Daytona crash removed from YouTube is a perfect example of the pressures that journalists face daily, says Mickey Osterreicher, a former news photographer who is now a lawyer and general counsel for the National Press Photographers Association (NPPA).

Fans like Tyler Andersen, who recorded the crash video, are signing over their rights to do whatever they wish with the still images, videos and audio they record during sporting events. If they read their tickets, “fans can see that they [may] give up their copyrights," Osterreicher said by phone Sunday. "The tickets say NASCAR owns anything the fans capture as pictures, video or sound."

Similarly, journalists feel forced to sign over their rights to cover all sorts of events -- from high school competitions to professional sports. The American Society of News Editors lists the most common restrictions, which, increasingly, are tilting away from free and open coverage and toward severely restricted access.

Saturday, NASCAR claimed it was a violation of its copyright for a fan to post video of the crash that sent 14 people to the hospital. YouTube took down the video. Later, NASCAR said the real reason it wanted the clip removed was out of concern and respect for the injured fans who might appear in the video. YouTube re-posted the video.

But if you capture “news” -- even at an event like a car race or a football game -- doesn’t that come under “fair use”?

On the one hand, journalists want wide latitude when it comes to the “fair use” of  copyrighted material. On the other hand, Osterreicher says, photographers and news organizations do not want their work to be lifted and reposted online. And just as you want copyright law to protect your work, NASCAR has a strong interest in protecting coverage of a race for which it has sold revenue-generating licenses.

Copyright law does not precisely answer the questions journalists often ask:

  • How many seconds of a copyrighted video can a journalist use in a news story?
  • How many lines of a book can you use without impinging on a copyright?
  • When can you use an image or a logo that you did not create and still be on solid legal ground?

Rather than answering those questions, the U.S. Copyright Office offers four guiding issues to consider in assessing fair use:

  1. “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit 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”
  4. “The effect of the use upon the potential market for, or value of, the copyrighted work”

A few things are clear: Simply saying where you got the copyrighted work is not enough to claim “fair use.”

Here is the kicker when it comes to the NASCAR/YouTube example: The U.S. Copyright Office says, “Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.”

If you cannot copyright facts, then it might be difficult to see how a YouTube video of a car tire sailing into a crowd could be copyrighted by anybody other than the person who captured it.

But there is a catch. Fans give up their rights to exclusive photos and video by buying and using that ticket that says NASCAR owns it all. Just as journalists who accept credentials give away the right to do whatever they want whenever they want with the images and video they capture at a race.

Journalists are being asked to sign over a lot -- not just by NASCAR but by the NBA, NFL and NCAA too.

“We are now seeing press credential agreements that say by taking these credentials, you promise not to feed more than three pictures per game, not to tweet, not to broadcast during the game,” Osterreicher said Sunday. Some sports organizations now want journalists to agree to sign over copyrights, to hand over any images they capture.

This month, 10 news organizations, including ASNE, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press, and the Student Press Law Center, sent a letter to the NCAA expressing concerns over how teams were attempting to control journalists.

ASNE told its members, “We have joined nine other organizations in a letter to NCAA President Mark Emmert. ... The letter raises concerns regarding the actions NCAA member institutions around the country have taken to restrict ASNE members’ ability to gain access to facilities, persons and information that allow us to cover local teams. The NCAA and various universities are also restricting publication of blog posts and use of social media, including Twitter and Facebook, among journalists. Producing good, informative sports stories is not a zero-sum game; it benefits both the local media entities and the institutions, driving our readership and their fan base.”

The Center for Social Media interviewed 80 journalists about issues of copyright and fair use and found sports journalists frequently caught in legal entanglements. Here are just two examples:

While at the aquatic center in Beijing covering the 2008 Olympics, a reporter was recording audio of the water polo team in the pool for a multimedia piece. A representative from NBC, who owns the broadcast rights to the games in the U.S., told the reporter that the media corporation owns the copyright to all sound at Olympic venues. “She stood there and made me erase the tape,” a sportswriter for a large metropolitan daily said.

Other reporters cited similar restrictions with Major League Baseball, the National Football League and the U.S. Open – and have expressed that counsel from those organizations actively police the licensing guidelines. "You can't hold onto that stuff forever," says one television producer about sports content. "Those are very strict rules. And the sports leagues enforce those quite a bit."

Osterreicher said there was once a time when journalists had the option of just saying “Fine, we won’t cover it,” and it might have been enough pressure to strike a different deal. But now, the sports teams can publish photos, videos or entire games online, over the air and on social media. NASCAR itself has more than three million Facebook followers. Drivers take their messages straight to the public too. Dale Earnhardt Jr. has 1.4 million followers.

The Center for Social Media found that journalists often don’t know what qualifies as fair use and what does not. A public broadcaster told the researchers that since public radio is non-profit, it could use copyrighted work more freely. (This is not true.)

Other journalists told researchers that as long as they only used less than 300 words from a book they could claim fair use. (Not necessarily.)

And what if you take a picture of a couple on a bench and a famous work of art is in the background? Can you publish your photo without worry that you are harming the copyrighted art? Probably the new photo is fine, since it is “transformative” in that it is using the copyrighted work in a new way, not just re-using it in the old way. It may depend on how prominent the original work is in the new piece or whether the new work in any way harms the value of the original. If, for example, the new photo shows a vandal cutting the original to pieces, fair use would apply because the new photo is certainly transformative.

The Center for Social Media also says this issue of “fair use” is rapidly growing in importance for journalists, partly because we want to use videos like the NASCAR crash and because journalists want to protect themselves from others who would snag their work and use it.

The issues are so confusing that journalists may be self-regulating at the public’s expense. “Several journalists reported that fair use around photography was so unclear to them that sometimes editors will run a story without art to avoid the issue completely,” the report said.

Like these journalists, you may be unnecessarily avoiding use of valuable photos and videos, like Saturday's race car crash -- just because someone (in this case NASCAR) questioned it. Instead, learn your rights and exercise them.

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    Al Tompkins

    Al Tompkins is The Poynter Institute’s senior faculty for broadcasting and online. He has taught thousands of journalists, journalism students and educators in newsrooms around the world.


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