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Fair Use Question of the Month: Crowdsourcing Journalism

Dear CMSI,

fine print

I’m doing a story on the use of highly technical language in Terms and Conditions clauses, and yesterday I found a really brilliant example on an application form I had to fill out. I’d like to post the relevant page online alongside the article when I’m finished and ask readers to weigh in on how to make the writing clearer, but I assume the text is copyrighted. Do I need the company’s permission before I can post it or is this a fair use?

Thanks!
Marc

Dear Marc,

It sounds like you’re hoping to use the form as a way of letting your readers participate in the creation of your story, which means you should check out Situation Six in the Set of Principles in Fair Use for Journalism. Situation Six states that “the use of copyrighted material to promote public discussion and analysis can qualify as fair use.” It also lists a number of limitations to keep in mind. Before you decide whether or not to post the form, ask yourself these questions:

First, are you only using as much of the form as you need for the critique? It sounds like what you need for your purposes is the Terms and Conditions form. Showing only part of it would be counterproductive, and showing more than that would be unnecessary. Is the form is already posted online somewhere? If so, do you need to reproduce it? You may have a journalistic reason to do so. If so, can you explain that reason to someone else? Oh, and I know you will, but basic politeness as well as good journalism require attributing the document.

Second, do you make clear to readers your reasons for posting the form, and what they’re supposed to do with it? Providing that framing will not only serve your journalistic purpose, but make clear why you are reproducing that material.

Third, is it relatively easy for readers to submit their comments and suggestions for improvement right there on the page with your article, and to build on other people’s submissions? If the idea is to foster discussion, you’ll want to make that both easy and clear.

Once you’ve answered these questions, you’ll be able to say with confidence whether or not posting the form qualifies as fair use.