Obtaining formal permission to use three quotations from New York Times articles in a book ultimately cost two professors $1,884. They’re outraged, and have taken to Kickstarter
— in part to recoup the charges, but primarily, they say, to “protest the Times’ and publishers’ lack of respect for Fair Use.”
Two California professors, Daniel C. Hallin from UC San Diego and Charles L. Briggs from UC Berkeley, used quotes from various media sources throughout their book about news coverage of health and medicine, and Routledge, their publisher, required that they obtain formal permission or cut them down. (Anyone who’s taken a media studies class will recognize Hallin’s name from his namesake spheres.) The issue “came to a head” with the Times, which they said requested payment for quoting anything more than 50 words of its material. Hallin and Briggs write in their Kickstarter campaign (which as of this writing has $644 of $2,000 pledged and 33 days to go):
The Times’ claim has no legal basis, and represents an arrogant rejection of the principle of fair use that is ironic for an organization that presents itself as a defender of freedom of expression. We reduced the size of a number of quotations, but in the end there were three from the Times we couldn’t cut to 50 words without damaging the integrity of our scholarship. We ended up paying the Times’ $1,884 to reproduce three brief quotations totaling less than 300 words (the publisher said this represented a 20% discount on what the Times was originally asking). We could have paid this amount out of research funds from our University, but it seemed to us unethical to use taxpayer funds to subsidize a big media corporation and undermine a right that belongs to all scholars and the public in general. So we paid out of pocket (our advance on royalties for the book will be $800).
The principle, they write, “is more important than the money.” Backers can also leave a comment for the authors to pass along to the Times and to Routledge.
Patricia Aufderheide, a professor at American University and director of its Center for Media & Social Impact, was emphatic that when publishers take what they feel is the “safest way” — requiring its authors seek out permission for every single thing previously published anywhere — “effectively what they’re doing is an act of censorship.” (Aufderheide helped create a code of best practices for fair use in scholarly research in communication and for fair use in journalism.)
“When publishers say ‘We’re going to take the safe route,’ they incur another kind of risk, which is that rather than the risk of having a rights holder challenge them, the risk will now be that they do not accomplish their scholarly and academic mission: most of the time scholars don’t have that $1,884,” Aufderheide said. “My colleagues and I have demonstrated again and again in our own research that one of the real consequences is not only that the work that is published is not as good — it’s the censorship of people who know they won’t be able to use their [fair use] rights, so they don’t even try.”
Fair use in the United States is determined by a four-part test, and quotation used for direct criticism — what Hallin and Briggs are doing — is often cited as one of fair use’s most central purposes.
She, and Hallin and Briggs, certainly have scholars on their side.
(Side anecdote: I worked as an editorial assistant in academic publishing before moving to journalism. I once requested permission to use a screenshot of a Times article online and was told by the company that manages rights requests for the Times that would be $612 for very limited use. Quoting lyrics is far more expensive: I was cited $1,500 for the use of five words from a sort-of-popular song.)
If an author or publisher doesn’t pay, then the Times can choose to bring legal action, no matter limited its chance of courtroom success. The Times, of course, is a business, and ultimately can try to charge whatever it would like — why not collect $1,884 for its copyrighted work, if permission is being requested?
A Times spokesperson wrote in an emailed statement:
The Times strongly supports fair use, which is a complicated and highly confusing concept of Copyright Law. We are regularly on both sides of the fair use issue, as both content creators and users.
It would be impossible for us to make ‘fair use’ judgments for the vast number of people and organizations that wish to use New York Times content — we leave that to them and their attorneys to work out for themselves, just as our lawyers make judgments about fair use for The New York Times. If those third parties don’t feel comfortable that their proposed use of our content is a fair use, then we are happy to make the content available through our licensing program.
Our journalism costs money to produce and we share royalties with the reporters, photographers and others who helped create it.
(I also reached out to Routledge and will update with their comments if I hear back.)
“I don’t think the Times needs to bend over backwards. That’s not where the problem lies,” Aufderheide told me. “My quarrel isn’t with the rights holders. We need to support each other — Dan [Hallin] and his colleague individually can’t do more. National organizations and associations need to stand behind their members.”