For NYT, Fair Use Depends on Who’s Doing the Using

Politico (6/9/16) reports that the New York Times is under fire for demanding that two media critics—Daniel Hallin and Charles Briggs—pay the newspaper a total of $1,884 for using three brief quotes from Times articles in their new book Making Health Public.

Critics do not generally need to seek permission nor pay royalties for quotations from the works they criticize—the “fair use” provision in copyright law authorizes such quotes for the purposes of commentary and criticism. But the Times, it seems, has a very restrictive view of fair use when it comes to its own material. As the authors write in a Kickstarter trying to cover the costs incurred by the Times‘ demands:

Our book is a work of media criticism, and much of it relies on close readings of media texts. We frequently quote those texts in the book so readers can see the actual language used in health news. Our publisher, however, pressed us to obtain permission from these sources or cut out quotes. The issue came to a head with the New York Times, which insists that authors pay for the rights to quote anything over 50 words.

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.

Politico‘s Joe Pompeo cites media observers like BuzzMachine‘s Jeff Jarvis, Fusion‘s Felix Salmon and Pando‘s Adam Penenberg who have come to the authors’ defense on Twitter. There was also criticism of the book’s publisher, Routledge, for not standing up for their authors’ right to quote: “The standard the publisher’s lawyer is applying as potentially violating fair use is ridiculous,” Penenberg tweeted.

Fifty words is not a very long quotation—the quote from the Kickstarter above is 112 words—and I was curious how well the Times adheres to its own standard. I had to look at five book reviews on the Times‘ book section before I found one—”Isabel Wilkerson Reviews Yaa Gyasi’s ‘Homegoing’” (6/6/16)—that closes with this passage:

One is left to ponder the words of Akua, an old Asante woman and one of Effia’s descendants, as she speaks across eras and oceans: “There are people who have done wrong because they could not see the result of the wrong,” she tells her estranged son. “Evil begets evil. It grows. It transmutes, so that sometimes you cannot see that the evil in the world began as the evil in your home.” The curse of enslavement, she says, is “like a fisherman casting a net into the water. He keeps only the one or two fish that he needs to feed himself and puts the rest in the water thinking that their lives will go back to normal. No one forgets that they were once captive, even if they are now free.”

The final quotation alone there is 54 words; combined with the other quotes from the same passage, it’s 97 words. In either case, it exceeds the 50-word limit that Times lawyers place on fair use.

Nearby on the page is in-house critic Dwight Garner’s review of Arthur Lubow’s biography of Diane Arbus (6/2/16), featuring this spicy-for-the-Times quotation:

She confided to Gay Talese that she took Greyhound rides as far as Boston and sat in the rear of the bus to indicate her willingness for sex — not to take pictures, just for the experience. She went to 42nd Street grindhouse cinemas with the screenwriter Buck Henry, who watched, astonished, as she lent a hand to masturbating patrons.

That’s 61 words—the same length as the verse quoted by Garner in his review (5/31/16) of Rita Dove’s collected poetry:

The general sees the fields of sugarcane, lashed by
rain and streaming.
He sees his mother’s smile, the teeth
gnawed to arrowheads. He hears
the Haitians sing without R’s
as they swing the great machetes:
“Katalina,” they sing, “Katalina,
mi madle, mi amol en muelte.” God knows
his mother was no stupid woman; she
could roll her R’s like a queen.

But the biggest quote I could find in a review on the Times‘ book page was from Justin Ellis’ review of Virginia Heffernan’s Magic and Loss: The Internet as Art. It quoted a 116-word chunk; if you count it as two quotes because it’s broken up by “she writes,” which you really shouldn’t, the bigger part is 102 words:

“For years technology had seemed to be the masculine form of the word culture,” she writes. “If you wanted to sell men on a culture story, you did well to frame it as a tech story — a story about the plumbing or stock price of Netflix rather than a story about the pixels that constitute ‘Bloodline.’ Technology is built stuff that aims to be elegant and engaging. Apps are founded on science in the same sense that a watercolor is founded on science, where the chemistry of pigments and the physics of brush strokes are the science. But the resulting painting, if successful, hints at transcendence or at least luminous silence, something whereof we cannot speak.”

So the question is: Did the New York Times seek permission from these authors, or their publishers, to quote these words? Would they have declined to run the quotes if the copyright holder objected—if, say, they anticipated a negative review from the paper?

Or is the Times going to return the check it got from Hallin and Briggs for demanding “rights” that it doesn’t really believe publishers have?

Jim Naureckas is the editor of FAIR.org. He can be followed on Twitter: @JNaureckas.

You can send a message to the New York Times at letters@nytimes.com (Twitter:@NYTimes). Please remember that respectful communication is the most effective.

No permission was asked nor royalties paid in the creation of this blog post.