Fair Use and Reposting Articles About You

A while back, I noted that under most circumstances, there is no good argument that reposting an entire newspaper story on the web qualifies as fair use under U.S. copyright law.

That being said, the Righthaven litigation has caused me to think about one particular set of circumstances for reposting whole newspaper articles that should generally qualify as a fair use. Those circumstances are when the article directly concerns the person (or entity) reposting it, and the article is not made available online so that the person about whom it was written can deeplink to it.

So, for example, if a newspaper writes an article about you, and then no longer makes that article freely available online, it seems to me there are strong reasons it should be a fair use for you to repost that article in its entirety on your website where people can view it without paying a fee or registering to get a password. To me, this rationale should apply even if you do not comment on the article – a common touchstone for fair-use analysis.

This is a fact pattern that has come up in the Righthaven litigation multiple times – a person or organization reposts an article directly concerning that person or organization. In fact, this is a well-established custom in many arenas, and it is a standard practice for many entities. It is often done through an agent, such as a publicist. The ubiquity of the practice suggests a belief among practitioners that it is not wrongful. Established customs do not always indicate widely held community values, but they often do. Here, I think the custom of entities reposting articles written about them reflects a culturally ingrained sense of fairness – one that copyright law ought to appreciate.

I do not know of any cases that support this view of fair-use doctrine – although I haven’t looked for them. But a lack of precedent wouldn’t mean that the fair-use doctrine should not be applied in this manner in appropriate cases. Fair use is meant to be flexible. The list of examples of fair use and the statutory list of factors to be considered in fair-use determinations are not intended to be exclusive.

When I was in journalism school, I recall one of my professors saying a newspaper can be thought of as “a community talking to itself.” If that is true – and I think it is – then the person being talked about has a strong personal interest in allowing that conversation to continue. Reposting a story ensures that.

We should bear in mind that a newspaper does not just write about stories of interest to the public, a newspaper actually infuses stories with public interest by the act of writing and publishing them.

We know that the First Amendment extends broad rights to newspapers to publish material about private persons where the topic or person is one of public interest. By the same token, private persons ought to have broad rights to republish material from newspapers when that material is written about them.

The free-speech, communicative, and democratic values that protect the right of newspapers to report and publish should also protect the right of persons who are subject to the scrutiny of the press to republish that material. In the great social contract that allows such unfettered freedoms to the press, a limited reposting right could well be considered the benefit of the bargain for the person subjected to the glaring light of the media.

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