The phrase sounds so rational; however, it has caused a lot of irrational stress and complications regarding the online re-use of third-party content.
Boiled down to its basics, fair use, to a digital journalist, means that you are free to use samples and snippets of content from other sources if you are writing in an editorial fashion directly about that actual content (e.g., quoting from an incendiary op ed you don’t agree with, and writing about it on your blog).
To make fair use even fairer for the folks whose content is being used, it’s always a good idea to link directly to the original content being written about. That drives both traffic and revenue to the source, and gets you out of the sticky situation of appearing as if you are using their content for your own personal gain.
In the early days of the Internet, it was not uncommon for people to use the full text of someone else’s content, but credit the source, and consider that fair. But because eyeballs mean dollars online, just because you prominently promote who wrote or created something doesn’t mean you’re treating their work fairly. For example, you can embed someone else’s You Tube video on your site, but the creator can track how many times his work is played on your site and receive ad revenue from that exposure.
It gets a little fuzzier when you are talking about fair use in terms of images. Photographers are often the victims of unfair online poaching because it is so easy to grab someone else’s image and use it to illustrate your article or blog post without contacting, crediting or paying the original artist.
Many people think it’s okay to use someone else’s image if your story includes a link to the original story in which it is used, but doing so is a slippery slope and often amounts to nothing more than ethical sleight of hand in order to acquire the illustration for free. In order to be as fair as possible, if you’re not writing about the actual photo itself, which arguably would then be fair use, then the practice should be avoided.
The same holds true for video clips. If you’re writing a news story about a specific piece of video, it’s fair to use a clip to illustrate your point. However, fair use can sometimes come with consequences because if a movie studio with a deep pocket finds you airing a clip of their film, even if it is being used in an entirely editorial context, it’s possible to receive a cease and desist order or end up in legal trouble, which oftentimes isn’t cheap.
But what about sites that employ fair use via aggregation as a business strategy? It’s a very common practice these days, and an excellent example can be found at The Daily Beast’s website.
In fact, that site’s motto, “Read This Skip That,” highlights their content aggregation strategy. In the center of their home page is a feature they call “Cheat Sheet, Must Reads from All Over” that compiles the 10 stories they think are the Internet’s top draws.
From their home page, The Daily Beast’s Cheat Sheet headlines link to an interior page that summarizes the story and then links to the full feature on the third party site. At a time when so many people have so little time to read a substantial piece of journalism, these summaries can actually be a disincentive for someone to click on the link to the actual feature.
The Daily Beast gets between 2 and 3 million unique viewers each month according to Compete.com, and they have a solid journalistic reputation, so you probably won’t hear a lot of complaining from the media outlets featured in their Cheat Sheet. Still, summarizing a story just enough to cover all of the pertinent facts feels more like a digital Cliff’s Notes service for busy news and culture surfers than simple fair use.
When it comes to images, however, The Daily Beast’s Cheat Sheet is picture perfect. They do not “borrow” images from the stories they are linking to, but instead,publish and properly credit the images that they chose, and—one would assume—pay for the rights to use those images.
So, in the end, is fair use fair? It depends on whom you ask. Blatant copying of content is easy to spot and prevent. Careful and calculated summarizing and linking is a lot harder to make a judgment about.
Fair use and aggregation are two very pivotal forces driving digital content strategies these days, and they are not going away any time soon. However, I can see a time when the practice could get a lot more complicated and make a lot of people much more careful about what they clip.
When—not if—a major news organization comes out with a breaking investigative story that the Daily Beast and all of the other big-time players in the fair use aggregation space feature, and it turns out to be wrong, how fair is fair use then? Do the sites that use and promote content from other sites for their own financial gain have any responsibility to make sure what they are promoting is accurate? It’s almost certainly a question they are going to have to answer soon, and the answer they get may fundamentally change how online content is promoted between different sites.
John D. Thomas, former editor of Playboy.com, is author of the soon-to-be-published Great Expectorations: The Cultural History of Saliva from Jesus Christ to Iggy Pop.