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[liberationtech] Poynter's article on how Daytona crash video tested fair use & copyright

Yosem Companys companys at
Sun Feb 24 16:56:41 PST 2013

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

[image: avatar]by Al Tompkins <>*
Published* Feb. 24, 2013 4:42 pm*Updated* Feb. 24, 2013 7:41 pm

NASCAR’s attempt to have a fan video of Saturday’s horrific Daytona crash
removed from YouTube<>
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 images, videos and sounds
they capture during sporting events. “Fans can see that they [may] give up
theircopyrights <> when they read their
tickets. The tickets say NASCAR owns anything the fans capture as pictures,
video or sound,” Osterreicher said by phone Sunday.

Similarly, journalists feel forced to sign over their rights to cover all
sorts of events — from high school to professional sports. The American
Society of News Editors lists the most common
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. YouTube took down the video. Later, NASCAR said
the real reason it wanted the clip taken down was out of concern and
respect for the fans who might appear in the video. YouTube re-posted the

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
   - 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 race car tire sailing into a crowd could be copyrighted
by anybody other than the person who captured it.

But there is a catch. Fans, like journalists, 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
… 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
The Center 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
the 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 your 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
exercise them.
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