Respecting Copyright and Fair Use


There’s probably a song on your phone that perfectly captures the atmosphere of your story. Maybe your story is even about a particular song that was playing on the radio the first time you kissed a boy. Or the song aunt sang at your grandfather’s funeral.

Or maybe you’re writing about your father’s passion for Yankee Stadium, but you don’t have any pictures of your own that capture the grandeur of the Bronx palace.

[epq-quote align=”align-right”]I’ve used copyrighted material without permission in my pieces. And I’ve come to regret it. [/epq-quote]There will likely be many times like these when you have to ask yourself tough questions about whether or not you’re going to do your best to respect copyright law and fair use principles. My advice to you is this: as best you can, try to do the right thing. The ethics of your conundrum likely aren’t complicated. More often, your decision is a matter of strength and respect. I’ve encountered my own copyright quandaries, and I’ll admit that I regret those moments when I chose to ignore what I knew was the right thing to do. I’ll get to those situations later. For now, let’s take a brief look at some basic ideas about copyright and fair use. I’ll try not to bog you down with details about copyright law. The simplest way to approach it is to ask yourself a couple of questions about the music, photo, or video clip you’re considering including in your story:

Do you know if the work is copyrighted?

Most of the time the answer to this question is simple, with a few exceptions. If you didn’t write or record a piece of music, create the video clip yourself, or take the picture in question, someone else likely owns the copyright. The ONLY way you have a right to use a particular piece of media in your story is if the owner of the copyright has expressly granted you the copyright in writing, or if they’ve attached a Creative Commons license [link] that spells out exactly how someone might use it. Copyright really is that simple. If you’re not the creator of the material, it isn’t free to use without written consent or an attached Creative Commons license.

Does including the piece of media in your own story qualify as fair use?

Questions of fair use are a bit more complicated. (Check out some of the links below.) The easiest and most common answer for digital storytellers is this: If you’re using the media element as part of your personal digital story, it is doubtful that it qualifies as fair use. If you think that your story is for “educational” purposes, forget it. That pretty much means that you created it as part of a class within a recognized educational institution, and expressly for that purpose. You might be able to stretch the principle to include non-profit institutions, but again, it has to be almost exclusively for providing educational information within the parameters of that nonprofit’s written mission. I wouldn’t recommend trying to justify your use of copyrighted material within these principles. They’re likely going to be very difficult to defend.

Copyright and fair use aren’t necessarily all that complicated (unless, of course, you find yourself embroiled in a legal proceeding). Still, some storytellers might respond with a variety of excuses to let themselves off the ethical hook. I encourage you not to offer yourself any of these sorts of excuses:

“My using this song/image/clip isn’t really hurting anyone.”

This excuse might be true, especially if you’re thoughtful enough to actually credit the element’s creator somewhere in your story. But if you extend this excuse a bit, it doesn’t hold up very well. For instance, what if your story were to go viral? How would you defend your decision at that point? (I know, we should all be so lucky as to have one of our stories go viral.) You might think that’s unlikely, and you’re right. But I’m trying to demonstrate the principle by changing the scope of the potential eventualities. Another way to think about your decision is to switch roles. What if you found that someone had taken the first half of your story and rewritten the second half for their own purpose? You likely worked hard on your story. YOUR story. That’s the principle I’m trying to get at here. You will have certain emotional, personal, and creative investments in your own work. How would you feel about someone appropriating your story for their own purposes, especially if they are at odds with—or even offensive to—your own? It’s essential that you acknowledge that a real person just like you made the element you want to appropriate and that you don’t actually know how they feel about you using their material for your own project. Your decision about whether or not to use their work as part of your own might start to look a lot different.

“My including this song/image/clip in my story actually helps the creator.”

I have to call B.S. on this one. This excuse might make you feel better, but it isn’t your call to make. If the creator wanted to grant people the right to help them through visibility, they would have granted a Creative Commons license to their work. The other element at play here is that the best way to help a creator is to pay them actual money. Before anything else, you should respect the creator as someone just like you who needs to make a living. Visibility doesn’t buy them a coffee or put gas in their car.

“No one’s going to notice, so what does it matter?”

[epq-quote align=”align-right”]I’ve had to focus on two alternatives to copyrighted material: finding Creative Commons assets or creating my own.[/epq-quote]When I was creating my first few stories, I told myself the same thing. However, assuming that no one is going to see the media element is the same as assuming that no one was going to see my story. To be honest with myself, I knew very well that I was going to share my story with “someone.” Telling myself that “no one” was going to see the story was just code for telling myself that there was little chance I would get busted. Not smart. It didn’t take long for YouTube to notify me of a copyright claim. At that point, I was confronted with the choice of either remaking my story without the copyrighted music or to permit random advertising spots either before or during my story. Ultimately, I chose to keep the music and live with the ad spots. Now, whenever I share my story with someone, a little part of me is annoyed by those ads. Since then I’ve realized that I need to ask myself whether or not I want random ad spots either before or covering part of my story. Not once has it seemed worth it. You should ask yourself the same question. (Note: The same principle holds true for images and video clips. YouTube, Google, and other search technologies are getting better all the time about flagging copyrighted material. If you use copyrighted material, eventually it’s going to be flagged.)

“What’s the worst that could happen?”

Dangerous question. Depending on the vindictiveness of the copyright holder, you could get sued into bankruptcy. (See Sony Music Corp.) Or you might have to take down your digital story altogether. When it comes to the few of my own stories which YoutTube has flagged, I’ve been fortunate even to have the choice to leave the video on the site in exchange for ad spots. Some copyright holders might not be so generous. The bottom line is that using copyrighted material as part of your story is a risk. Whether you like it or not, you’re going to have to live with the consequences. Make sure you’re at peace with that before you make your decision.

Most of us drive over the speed limit at one time or another. A lot of us partake in social behaviors that socially acceptable, yet still illegal. I’ve been a guilty speeder. I’ve filed my taxes late. I drank a lot of Old Milwaukee before I was twenty-one. I’ve even smoked weed a few times. I’m no different than a lot of people. And as I’ve mentioned, I’ve used copyrighted material without permission in my pieces. And I’ve come to regret it. At first, because I didn’t like the penalties and consequences. And then because the more I thought about it, the more I had to admit that it simply wasn’t the right thing to do.

As I’ve evolved into a (relatively) staunch advocate for copyright respect, there’s no doubt that ethically creating stories has become a bit more challenging. I’ve had to focus on two alternatives to copyrighted material: finding Creative Commons assets or creating my own. You will be able to find plenty of Stories21 posts about creating your own photos, capturing your own video clips, or recording your own voiceovers. And if you’re curious about finding media elements with Creative Commons licenses, you can check out these posts. (While Stories21 is in its early stages, the selection of these related posts might be a little sparse. There will be more eventually.)

If you want more information, check out our “Copyright, Fair Use, and Creative Commons” page for a whole bunch of videos and links.