Fair Use Question of the Month: Is There A "Ten Percent" Rule?

In this Fair Use Question of the Month, a journalist has a question about whether or not his friend's "ten percent" rule is correct when it comes to quoting copyrighted work in his weekly podcast.

Dear Center for Social Media,

As part of my work as a journalist, I record a short weekly podcast on pertinent political issues. I want to do a story on a 15 second commercial from a local political candidate’s campaign. My friend told me that he follows the ten percent rule when it comes to using copyrighted material, but I really think I need to run the whole commercial in order to make my point effectively. Can I use the whole thing in fair use?

Thanks,

Mike

Mike,

Many gatekeepers believe that hard numbers govern decisions about fair use. Gatekeepers sometimes also say you can never use a work in its entirety under fair use. They are wrong on both counts, as the Codes of Best Practices in Fair Use facilitated by the Center for Social Media explain, and which you can find here. This is always a case-by-case decision based on the reasons for your re-use of the material and the amount you are choosing, as well as other considerations such as non-commerciality and the nature of what you are taking. In this case, you have been given bad information. There is no “10 percent” or “30 second” rule. You are already comfortable, as most journalists are, employing fair use for some quotation of copyrighted material. Your problem is with the whole amount. Ask yourself: Do you have a good reason for playing all of this commercial? Do you need for the listener to hear the entire thing to grasp the points you are making in the reporting? Will you make it easy for the listener to understand why they need to hear the whole thing? Your answers to these questions will determine your choice. You can then go back and help educate the person who gave you that misinformation. It won’t hurt to make a note for yourself of your reasoning; if anyone ever challenges your choice, you’ll be able to show them you thought about this, and had good reasons.

Good luck!

Center for Social Media