Scholarly Communication •

Fair Use and News Reporting – A Fair Use Week Post

Fair Use and News Reporting

Guest post by Leigh Barnwell (J.D. Candidate, Class of 2015, Harvard Law School)

News reporting is supposed to be one of the paradigmatic uses protected as fair under US copyright law. It’s listed right in the preamble to the statute that the “fair use of a copyrighted work . . . for purposes such as . . . news reporting . . . is not an infringement of copyright.” 17 U.S.C. §107 (emphasis added). But in recent years it has become increasingly common for news organizations to be expected to pay licensing fees in order to use copyrighted images – including photographs depicting major newsworthy events – as part of their reporting. And this common practice now seems to be affecting the legal analysis of the scope of the fair use right enjoyed by the press.

These issues are at the heart of a dispute between Fox News Network and the New Jersey Media Group (publisher of several New Jersey newspapers) currently being argued in the Southern District of New York. The case is North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC.  The litigation arose out of a social media post made in 2013 to honor the anniversary of 9/11. On September 11, the Fox News show, Justice with Judge Jeanine, posted a composite image to its Facebook page that combined two iconic photographs side-by-side—one showing a group of firefighters hoisting an American flag at amidst the wreckage of the World Trade Center on, and the other showing four American marines in a strikingly similar pose raising the flag on Iwo Jima. The combined image already existed online, but the Fox News staff added the hashtag #neverforget to the image before posting it. In response, the New Jersey Media Group, copyright holders of the 9/11 photograph, brought suit for infringement. Earlier this month, the District Court denied Fox News’ motion for summary judgment, determining that they could not rule as a matter of law that the posting qualified as fair use.

A couple of things are particularly striking about the court’s opinion. Perhaps the most significant is that it jumps immediately to analyzing the four statutory factors for assessing whether a particular use qualifies as fair, and skips over the preamble language at the beginning of §107, outlining the paradigmatic purposes that fall within the fair use exception – the language that identifies news reporting as exactly the kind of use that would typically qualify. By leaving this language out of its analysis, the court ignores the special solicitude that Congress has shown to news reporting (along with teaching, scholarship, research, and other similar uses) by identifying it in the statute as the sort of use that should typically be protected under the doctrine.

This omission also informs the way the court conducts its fair use analysis under the four factors outlined in the statute. If we know that news reporting is characteristically the kind of use that should not be found infringing, that knowledge should shape the way we consider it under the four factors – and if our analysis under the four factors indicates that news reporting wouldn’t qualify as a fair use, then that may be a signal that we are interpreting the factors incorrectly or too rigidly, or applying them inappropriately in the particular context of reporting.

Here, because the court never considered whether Fox’s post qualified as news reporting, its analysis under the first factor—the purpose and character of the defendant’s use—wasn’t guided by the particular concerns that animate uses for news reporting. Instead the court focused on precedents—Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) and Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)—that analyze fair use in the context of visual art. In those earlier cases, the Second Circuit had found that most of the artworks that appropriated copyrighted photographs were protected by fair use because the final works created were “fundamentally different and new,” Cariou, 714 F.3d at 706, or the artist had altered the original photographs to the point that they were “barely recognizable,” id. at 710.

This emphasis upon transformation makes sense when a court is assessing the purpose and character of a defendant’s use in the context of appropriation art. But as Kevin Smith pointed out in a fantastic post during the first Fair Use Week last year, transformation doesn’t make sense in the context of news reporting and many other public purposes that we nonetheless consider to be fair. Indeed, news reporting would be completely undermined if members of the press were required to transform or alter the newsworthy materials they were trying to disseminate to the public to the extent required in Cariou and Prince; since the purpose of news reporting is sharing accurate information, it doesn’t make sense to require transformation in order to consider the use fair.

The impact of licensing culture is most directly visible in the court’s analysis of the fourth fair use factor – the impact on the potential market for the original work. While acknowledging that the loss of a single licensing fee was not enough to tip the factor against fair use (because then it would always do so), the court found that Fox’s use would likely encourage other news media outlets not to seek licensing fees, thereby damaging the “primary market for the photograph.” Leaving aside that the firefighter photo does have a market beyond news media (which a quick Google search will confirm), the loss of licensing fees from parties whose use is at the core of the statutory fair use protection should not be relevant to the market assessment under the fourth factor. The fact that the court identifies the lost revenues from other news outlets as a significant financial harm that weighs against a finding of fair use in this case shows just how deeply the culture of licensing fees has pervaded the legal analysis of media fair use claim. These fees are something the court thinks a copyright holder has a right to collect, which would only be true if these uses aren’t protected as fair—which we know they are supposed to be!

Because the court focused so heavily on the four fair use factors and failed to address the special importance of news reporting head on, it missed what is arguably a more interesting and important question in the case, namely whether this Facebook post by a major media outlet – likely indistinguishable from hundreds of other tributes posted the same day – constitutes news reporting, and where the boundary of news reporting lies in the age of social media. It may be that Fox’s post shouldn’t be considered news reporting and therefore shouldn’t be entitled to the fair use protections that historically accompany that function. But by failing to address that question directly and by failing to account for the different purposes of news reporting in its analysis of the four statutory factors, this opinion advances the erosion of fair use protections for the press in a way that all media outlets should be concerned about. Different uses are protected as fair for different reasons – and it’s crucial that courts acknowledge and understand that fact as they apply the law.

Leigh Barnwell is a 3L at Harvard Law School, where she serves as a member of the Board of Student Advisers, an Executive Submissions Editor for the Journal of Law and Gender, and Copyright Fellow for the Office for Scholarly Communication. Before coming to law school, she studied English and Economics at Stanford University, received a Masters with Distinction in English from the University of Edinburgh in Scotland, and worked for several years in the Books Editorial Department of Duke University Press. She spent her 1L summer at Public Knowledge, a DC-based non-profit that works on IP, tech, and communications policy, and her 2L summer at Patterson Belknap Webb & Tyler in New York City. 

Faculty Book Talk: Cass Sunstein’s Wiser: Going Beyond Groupthink to Make Better Decisions, Wed. Feb. 11 at noon

The Harvard Law School Library staff invites you to attend a book talk and panel discussion in celebration of  Professor Cass Sunstein’s recently published book with Reid Hastie, Wiser: Going Beyond Groupthink to Make Better Decisions, Wednesday February 11, 2015, 12:00 noon.

Harvard Law School, Room WCC 2012. (Directions).

Sponsored by the Harvard Law School Library.

Lunch will be served.

Professor Sunstein is currently the Robert Walmsley University Professor at Harvard. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Mr. Sunstein has testified before congressional committees on many subjects, and he has been involved in constitution-making and law reform activities in a number of nations.

Mr. Sunstein is author of many articles and books, including (2001), Risk and Reason (2002), Why Societies Need Dissent (2003), The Second Bill of Rights (2004), Laws of Fear: Beyond the Precautionary Principle (2005), Worst-Case Scenarios (2001), Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Simpler: The Future of Government (2013) and most recently Why Nudge? (2014) and Conspiracy Theories and Other Dangerous Ideas (2014).

Sunstein book talk poster

“Why are group decisions so hard? Since the beginning of human history, people have made decisions in groups–first in families and villages, and now as part of companies, governments, school boards, religious organizations, or any one of countless other groups. And having more than one person to help decide is good because the group benefits from the collective knowledge of all of its members, and this results in better decisions. Right? Back to reality. We’ve all been involved in group decisions–and they’re hard. And they often turn out badly. Why? Many blame bad decisions on “groupthink” without a clear idea of what that term really means. Now, “Nudge” coauthor Cass Sunstein and leading decision-making scholar Reid Hastie shed light on the specifics of why and how group decisions go wrong–and offer tactics and lessons to help leaders avoid the pitfalls and reach better outcomes. In the first part of the book, they explain in clear and fascinating detail the distinct problems groups run into: They often amplify, rather than correct, individual errors in judgment; They fall victim to cascade effects, as members follow what others say or do; They become polarized, adopting more extreme positions than the ones they began with; They emphasize what everybody knows instead of focusing on critical information that only a few people know. In the second part of the book, the authors turn to straightforward methods and advice for making groups smarter. These approaches include silencing the leader so that the views of other group members can surface, rethinking rewards and incentives to encourage people to reveal their own knowledge, thoughtfully assigning roles that are aligned with people’s unique strengths, and more. With examples from a range of organizations–from Google to the CIA–and written in an engaging and witty style, “Wiser” will not only enlighten you; it will help your team and your organization make better decisions–decisions that lead to greater success.” —  Harvard Business Review Press

Book talk panelists include:

Martha Minow




Dean Martha Minow, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School


Screen Shot 2015-01-09 at 12.49.54 PM



Professor Max H. BazermanJesse Isidor Straus Professor of Business Administration, Harvard Business School


Louis Kaplow




Professor Louis KaplowFinn M. W. Caspersen and Household International Professor of Law and Economics



Lawrence Summers, Secretary of the Treasury under President Clinton; Director of the National Economic Council under President Obama—

“No man is an island, and all important decisions are made collectively. This important book shows how they can be made better and so will make groups, crowds, and our society wiser and better. Anyone involved in making decisions that matter should read this book.”

John Engler, President, Business Roundtable—

“Drawing on academic research, real-world examples, and, in Sunstein’s case, White House experience, the authors identify the most common mistakes groups fall victim to and offer sensible ways to avoid those often-expensive errors. In Sunstein and Hastie’s recommendations, CEOs and managers alike will find much that leaves them, in a word, wiser.”

Claire Shipman, Correspondent, ABC’s Good Morning America; Author, The Confidence Code

“More minds aren’t always better, according to Cass Sunstein and Reid Hastie. In Wiser, they deftly lay out the unexpected perils of group decision making and provide smart, straightforward, and often surprising fixes. Utterly fascinating and counterintuitive, this book is an essential read for executives and managers—for anybody, actually, hoping to make an enterprise successful.”

Austan Goolsbee, Professor, University of Chicago Booth School of Business; former Chairman of the Council of Economic Advisers under President Obama—

“There have been lots of books written on why and how individuals make bad decisions. But many of the most important decisions are made by committee, where normal problems get magnified. Finally, Sunstein and Hastie have provided crucial insights and lessons to help groups and teams avoid pitfalls and make effective decisions. Leaders everywhere should take these lessons to heart.”

Doris Kearns Goodwin, Pulitzer Prize–winning presidential historian; Author, Team of Rivals and The Bully Pulpit

“This gem of a book is full of penetrating insight, sensible advice, and fascinating stories drawn from practical experience. Written with clarity and grace, it provides an invaluable road map for leaders and managers in both public and private life. I can think of dozens of historical decisions that might have been better made had our leaders followed these precepts.”

Finding Public Domain and Creative Commons Images

Whether you are working on a classroom presentation, a personal website or any other project, images can add some visual interest to your design. However, you won’t always have taken the perfect image for your purposes. In these situations, the best solution is to try to find a public domain or Creative Commons licensed image. To make this process easier, the library has developed a guide to finding and using such images. Check it out and let us know if we have missed any additional sources that we should add!

Honoring Justice Ruth Ginsburg

Supreme Court Justice Ruth Bader Ginsburg visited Harvard Law School on February 6, 2013 and reflected on her twenty years of service on the United States Supreme Court during a public conversation with HLS Dean Martha Minow.  In honor of Justice Ginsburg’s visit, twelve HLS faculty wrote essays that discuss some of her outstanding legal opinions.  The essays are available in print, on Reserve at the Harvard Law School Library and are available for reading and for download on a newly created web site courtesy of the HLSL staff.

Honoring Justice Ruth Ginsburg

Interested in getting published?

Thinking about trying to publish in a law journal? Many law students have done it! Join the library in exploring the tools you can use to make the process of submitting an article for publication easier, including:

•how to identify potential journals and measure their impact/quality
•how to use ExpressO and other means to submit your manuscript
•how to assess publication agreements and your rights as an author

Sessions are available:
April 12th, noon-1:00pm
April 12th, 5:00-6:00pm

Register here.

faculty book event: Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11

The Harvard Bookstore is hosting an event for Professor Jack Goldsmith’s Power and Constraint:
The Accountable Presidency After 9/11
on March 19th, 6:00pm at the Brattle Theatre. Martha Minow, Charles Fried and Joseph S. Nye, Jr. will be joining the discussion of the book.

Tickets are $5. More information about the event (including tickets and obtaining a signed copy of the book) is available on the Harvard Bookstore website.

Check out Hollis for library copies of the book.

Washington & Lee Updates Its Journal Rankings

Just as we are in full swing for the spring law review submission cycle, Washington & Lee University University School of Law Library releases the 2011 update to its Law Journal Rankings. The Harvard Law Review comes in first.

Book Event: In Defense of Women: Memoir of an Unrepentant Advocate

In Defense of Women: Memoir of an Unrepentant Advocate (Beacon Press)
by Nancy Gertner

A panel discussion of women and the law with

Judge Nancy Gertner (Ret.), Professor of Practice, Harvard Law School

Martha Minow, Dean and Jeremiah Smith, Jr. Professor of Law, Harvard Law School

Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, Harvard Law School

Martha Coakley, Massachusetts Attorney General

Robin Young, National Public Radio (NPR)

In connection with this event, the Harvard Journal of Law & Gender has published 3 reviews of the book.

Tuesday, February 21st, 6:00pm
Austin Hall West 111
Harvard Law School

Refreshments will be available.

Free and open to the public.

Co-sponsored by the Harvard Law School Library, Harvard Women’s Law Association, Harvard Journal of Law & Gender and the Harvard American Constitution Society

Book Event: A Panel Discussion about Connecting Democracy: Online Consultation and the Flow of Political Communication

A Panel Discussion about Connecting Democracy: Online Consultation and the Flow of Political Communication


Peter Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University and Visiting Professor of Law at Harvard Law School Library (co-editor of the book)

David Lazer, Associate Professor, College of Computer and Information Science, Northeastern University

Ethan Zuckerman, Director of the Center for Civic Media at MIT

Matthew Baum, Marvin Kalb Professor of Global Communications, Professor of Public Policy, Shorenstein Center, Harvard Kennedy School of Government

John Palfrey, Berkman Faculty Co-Director, Henry N. Ess III Professor of Law, Vice Dean, Library and Information Resources, Harvard Law School

Austin 111 West
Harvard Law School
Tuesday, February 7th

Free and open to the public.

RSVP requested.

Sponsored by the Harvard Law School Library and the Berkman Center for Internet & Society

Faculty Book Event: Republic, Lost: How Money Corrupts Congress–and a Plan to Stop It

Republic, Lost: How Money Corrupts Congress–and a Plan to Stop It

A conversation between Lawrence Lessig and David Gergen


Tuesday, November 1, 5:00 pm
Ames Courtroom, Austin Hall, Harvard Law School

Free and Open to the Public
Co-hosted by the Harvard Law School Library, Edmond J. Safra Center for Ethics,  HKS Center for Public Leadership, and the Berkman Center for Internet & Society

Professor David Gergen,  Director of the Harvard Kennedy School’s Center for Public Leadership converses with Professor Lawrence Lessig about his new book,  Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It.

Updates and (optional) RSVP on Facebook

LIVE STREAMING: This event will also be streamed live. (QuickTime player version 7.6.2 or more recent is required to view or listen to HLS streaming media. (Older versions might not work.) The player is available for download at no cost from the Apple Web site.

About Professor Lawrence Lessig:

Lawrence Lessig is the Roy L. Furman Professor of Law at Harvard Law School, and director of the Edmond J. Safra Center for Ethics at Harvard University. Prior to rejoining the Harvard faculty, Lessig was a professor at Stanford Law School, where he founded the school’s Center for Internet and Society, and at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.

Lessig serves on the Board of Creative Commons, MAPLight, Brave New Film Foundation, The American Academy, Berlin, AXA Research Fund and and on the advisory board of the Sunlight Foundation. He is a Member of the American Academy of Arts and Sciences, and the American Philosophical Association, and has received numerous awards, including the Free Software Foundation’s Freedom Award, Fastcase 50 Award and being named one of Scientific American’s Top 50 Visionaries.

Lessig holds a BA in economics and a BS in management from the University of Pennsylvania, an MA in philosophy from Cambridge, and a JD from Yale.

About Professor David Gergen:

David Gergen is a senior political analyst for CNN and has served as an adviser to four U.S. presidents. He is a public service professor of public leadership at the Harvard Kennedy School and the director of its Center for Public Leadership. In 2000, he published the best-selling book, Eyewitness to Power:The Essence of Leadership, Nixon to Clinton.

Gergen was born in Durham, North Carolina, where his father taught mathematics at Duke University. He graduated with honors from both Yale College (1963) and Harvard Law School (1967), and served as an officer in the U.S. Navy for nearly three and a half years, posted to a ship in Japan.

Gergen joined the Nixon White House in 1971, as a staff assistant on the speech writing team, a group of heavyweights that included Pat Buchanan, Ben Stein, and Bill Safire. Gergen went on to work in the administration of Gerald Ford and as an adviser to the 1980 George H.W. Bush presidential campaign. He served as Director of Communications for Ronald Reagan and as adviser to Bill Clinton and Secretary of State Warren Christopher on domestic and foreign affairs.

In his private life, Gergen works as a political journalist and analyst. From 1985-1986 he worked as an editor at U.S. News & World Report, where he also served as editor-at-large. Gergen’s career in television began in 1985, when he joined the MacNeil/Lehrer News Hour for widely praised Friday night discussions of politics. Today, he appears frequently on CNN as a senior political analyst and contributes a monthly column to Parade Magazine.

Gergen joined the Harvard faculty in 1999. He is active as a speaker on leadership and sits on many boards, including Teach for America, the Aspen Institute, and Duke University, where he taught from 1995-1999. He is a member of the Washington D.C. Bar and the Council on Foreign Relations, and holds 19 honorary degrees.