All the News That's Fit to Recite With Music

Dear Rich: I'm a musician who composed a piece of instrumental music inspired by a 1995 New York Times article. When performing the music, there is a section during which I recite 110 words of the 2,443-word article. I am familiar with the Gerald Ford case, and I don't believe the text in question would stand out as the "heart" of the story. When I perform the piece, I tell audiences the source of the text. I'm now planning to record it, and credit for the text will be noted in the attendant printed material.  Does this sound like fair use? If not, what do I do? Pay for a reprint?
We think your work qualifies as "fair use" (as explained below). If the New York Times finds out about your use, we hope their lawyers agree with our analysis and leave you alone. But if they don't, they can file a lawsuit and make you prove your right to fair use. That could quickly turn into a battle of financial attrition in which your legal rights take a backseat to your bank account.
What about asking for permission? We believe that you're performing, editing, and adapting the article to a new medium, so pursuing reprint rights won't help. The Times doesn't seem eager to encourage adaptations like yours.

Editing and adaptation of New York Times content is generally not permitted, and must be approved by The New York Times. Use of article excerpts is possible with permission from The New York Times, without alteration to the intended meaning of the original text. 

You can try asking the Times for clearance. If they entertain your request, expect to pay a fee of more than $200. If the Times turns down your request, you'll find yourself in an awkward position because the newspaper is now aware of the details of your work. That doesn't prohibit you from using the article and claiming fair use (as this Supreme Court case indicates).
Is it fair use? Juxtaposing text from a New York Times article with original music gives the text a different character, a new expression, and "new aesthetics with creative and communicative results distinct from [the original work]."(Cariou v. Prince). There are other factors to consider when a judge determines fair use but as the Supreme Court stated two decades ago, "[t]he more transformative the new work, the less will be the significance of other factors." Nonetheless, two of the other three factors lean in your favor -- the amount and substantiality of the portion taken (4.5%, and it's not the heart of the work), and the effect of the use upon the potential market (what potential market is there for a 23-year old news article?). BTW, the Gerald Ford case was primarily about the right of first publication which doesn't apply to your situation.
What should you do? We want you to achieve your musical vision and we want you to stay out of court. As for the latter, here are some things to consider.

• Is the Times likely to find out about your use? Obviously, you're better off if the answer is "No."
• Will the Times pursue the matter if they find out? We like to think that the Times would be reasonable, recognize your borrowing as fair use and, as champions of free speech, would not want the publicity of going after a music composer.
• Are you a worthwhile target? If you're not wealthy and not selling a lot of records, you're usually less appealing as a defendant.

Copying New York Times for GRE Purposes

Dear Rich: I have developed a website to help GRE examinees. The site is non-profit and all the materials are public (no registration is needed). For improving reading comprehension, I'm scraping GRE-level articles from various new agencies like nytimes.com and mark the GRE words in their text and show the article to the users. The source of the articles are included on the bottom of the page. I don't have any financial purpose for this site. I fear that maybe I'm infringing the copyright law. Listen to your fears because it sounds like you are infringing regardless of your "educational" purpose, financial motives, or desire to provide attribution. You might be able to excuse your infringement by claiming a fair use defense but we don't think you'll succeed because it sounds like you're reproducing complete articles, and because your use, although slightly transformative, probably doesn't tip the four fair use factors strongly in favor of a solid defense (keep in mind that the New York Times charges for its articles or limits access to them).  News syndicates like the New York Times, AP and others, seek to halt practices that use their content for other purposes. So unless you maintain a low profile, chances are fair-to-good --  considering the piracy detection software that's available -- that at some point you'll find a cease and desist letter in your mailbox.

Can I Use Old Newspaper Photos and Articles?

Dear Rich: I’m writing a book about basketball in 1949-50 in one Indiana county. Looking for old pictures, I reached out to the publisher of a local newspaper for help and told him exactly what I was doing. In his reply he said that was his copyrighted material, I didn't ask for permission the correct way, and he wouldn't approve of my use of any of his newspaper’s material in my book. I'm also quoting the sportswriter (who was a full-time employee) from that newspaper throughout the book. A study of old copies revealed that the newspaper never provided proper notice. I checked several dates, including the first of the series run (examples attached). Many of the pictures that were published in the newspaper turned up in private collections because the newspaper sold copies or gave them away and no copyright notice appeared on the front or back of those copies either. A retired employee of the newspaper says he took all of the pictures in question. He is still alive and indicated the paper never copyrighted anything back then. I couldn't find a record of copyright renewal by this newspaper through the copyright office, either. On another note, the newspaper's circulation has dropped 50% over the last six years. Did this material pass into the public domain as soon as it was published in the newspaper without notice? Are there any other considerations I need to be aware of? Is this an example of copyfraud? There are two ways the photos and sports articles from 1949 and 1950 would be in the public domain: if they were published without notice or if they were not renewed.
Missing the copyright notice. Prior to March 1, 1989, all works published in the U.S. had to include proper copyright notice (and for works published before 1978, the notice had to include the year). The failure to include notice resulted in the loss of copyright unless certain correct steps were taken (and such steps were rarely taken -- here's a sad story). The newspaper could have protected its photos and articles with a single copyright notice, typically placed on the title page or editorial page. That type of notice would have extended to all photos and articles. This does not necessarily mean that the newspaper owns the copyright in all of the works. It may or may not, depending on the contract with the author or photographer. But based on your question, it appears as if the sportswriter and photographer contributed their efforts as employees and the newspaper would have owned the copyright.
Failure to renew. Any work initially published in the United States in 1949 or 1950 would have lost copyright if it wasn't renewed 28 years after publication. Chances are good that's what happened to the newspaper articles and photos. According to Steve Fishman, author of several books on the public domain, the Copyright Office estimates that only about 15% of all works published during 1923-1963 were ever renewed. Assuming your Copyright Office research is accurate, the failure to renew may be the basis for claiming the work is in the public domain, although it is possible (though not likely) copyright information for the photos or articles could be listed separately by title in the records.
What about your book? If the work is in the public domain, you (and everybody else in the world) are free to use it. The biggest challenge is access, of course. The publisher's response may be copyfraud though we're not sure if intent matters (it is always possible that the publisher has simply been misled as to copyright rules). You could start by confronting the publisher with your factual determination and perhaps find out if you're incorrect -- can he demonstrate that notice was included or that issues were renewed? Also, if your book is distributed by a publisher that demands indemnity, you would be best served to have a copyright attorney sign off on the final determination.
And thanks for stirring up memories. The Dear Rich Staff worked for five years at a southern Indiana newspaper back in the 1970s!

Wants to Excerpt News Articles

Dear Rich: I'm in the process of writing a book. I'd like to use excerpts from news reports from newspaper articles as introductions to each chapter. Is this covered by copyright? Yes, news articles, like all original textual works, are protected by copyright ... unless of course, they're in the public domain. However, your excerpts from these news articles will likely qualify as a fair use (click for some examples), provided you keep them  short -- for example, 50 to 100 words. In that way, your use appears to fit within fair use guidelines as a "transformative" and excerpted use of nonfiction text for purposes of commentary. We provide our usual caveat when it comes to fair use -- the final word in any fair use dispute is a court, so there are no guarantees (as demonstrated in this recent case). And also, let's not forget how strange some companies can be in their pursuit of copyright "justice".

Newspaper Columns and Copyright

Dear Rich:  I have been writing a column for a local newspaper for the past few months, for which I am not receiving any payment. I want to preserve my copyright in the columns, all of which run under my byline with a distinctive title, but both the printed and online versions carry footnoted language stating that the newspaper owns the copyright. I asked for a written agreement to correct this, but their standard agreement is complicated and asks me to give up rights without establishing my ownership. Since I'm unpaid, I'd rather just go without a written agreement but worry about letting their copyright footer remain. I'm about to launch a blog or Facebook page relating to the column, and want to make my ownership of the column and its title clear.  If you're not an employee of the newspaper and you don't have a written agreement detailing who owns copyright -- either a work made for hire agreement or an assignment -- then you own the copyright in your column, no matter what the notice says. The newspaper must have necessary paperwork to claim ownership and apparently they don't. That doesn't prevent the newspaper from reproducing your column. You've consented to that and the newspaper has an implied license (created by your behavior) to use the material. Could the newspaper argue that you never objected to the notice and therefore, that failure to act prevents you from now claiming copyright? That wouldn't fly because the rules about transferring ownership would trump any such claims. The newspaper needs something in writing.
What about the copyright notice? We haven't seen the notice or its placement in relation to your column but here a few things to consider about notice.

• Copyright notice is not required to protect a work. Or perhaps we should put it another way: the absence or presence of notice won't harm your ability to claim copyright ownership; 
• Improper copyright notice may affect the owner's ability to seek maximum damages against someone who claims to be an "innocent infringer."   The newspaper possesses your permission to reproduce the column. So, the newspaper's use of the notice may reflect its claim as to those limited rights -- for example, the newspaper's claim as to its exclusive right of first publication of the column; and 
• Finally, it's possible that placing a copyright notice may mean that the newspaper is seeking to put the world on notice that it claims a collective works copyright in everything on that newspaper page or in that issue. For example, at many websites, the copyright notice in the footer of the web page is not necessarily claiming ownership on everything on that page, but it is claiming rights in the collection and selection of material (while the individual authors may claim rights in individual contributions).

What does "owning copyright" mean? Okay, so assuming you own copyright in the column, you have the right to reproduce and create derivatives. For example, you could put out a book of your columns or reproduce them at your blog. It also may give you the right to prevent the newspaper from reproducing the material at a secondary site, in print form, or from licensing your column to others.
Crystal ball dept. Can we ask why you are writing the column without payment? We assume its because you get something out of the publication? If what you get is very important, you may want to rethink the whole copyright issue. Yes, it's important to own copyright if you have plans in the future. But if not, you should ask if you really need to own the copyright. You could, for example, grant the newspaper copyright and retain the right to do certain things with the column without having to ask for permission or having to pay the newspaper -- just an idea. Also keep in mind, that in return for some consideration, you can always grant copyright to the newspaper after the fact. Assignments do not have to be contemporaneous with the creation of the work (while some courts have held that work made for hire agreements must precede the creation of the work.)