As the ‘engine of free expression,’ copyright law plays a vital role in enabling journalists to shine a light on injustice

The senseless murder of George Floyd, a black man killed while in police custody, has prompted hundreds of protests all 50 states and abroad condemning racism and the continued disregard for black lives. Each day, as tens of thousands of protesters fill the streets to exercise their First Amendment rights, journalists follow suit, documenting history as it unfolds.

Times like these highlight the importance of professional journalism, and unfortunately, there’s been no shortage of “times like these” in American history. Photojournalists were there to cover protests in recent years following the killings of Trayvon Martin, Mike Brown, Eric Garner and countless others. In 1992, when riots broke out all over the country following the acquittal of the officers who mercilessly beat Rodney King, journalists were there. And it is thanks to photojournalists that we have photographic evidence of the heinous use of high-powered hoses and snarling dogs to subdue protesters during the Civil Rights Movement.

The freedom to assemble in protest and the freedom of press—two of the guarantees under the First Amendment that are vital tenets of democracy—are both under attack. There have been numerous reports of police using undue force not only against peaceful, law abiding protesters, but journalists as well. According to Harvard’s Nieman Foundation, journalists have been arrested and/or attacked by the police more than 140 times since May 28. Despite wearing a press badge and carrying two large cameras, a Denver Post photographer was reportedly attacked by the police with pepper balls. A photojournalist from the Los Angeles Times was injured when she was targeted by police with pepper spray and rubber bullets in Minneapolis. A Syracuse press photographer was shoved to the ground by an officer on camera. Over the course of a few days, there were over 40 reports of journalists being arrested and charged with minor offenses in thinly veiled attempts to stop them from covering the protests or police activities. And for black journalists “wearing both a press badge and black skin,” as the president of the National Association of Black Journalists puts it, the danger is that much greater.

Journalism and the news media play an invaluable role in shining a light on injustice and protecting democracy. It is essential that they are afforded the necessary resources to continue to do their jobs effectively and with integrity. In a 1985 case, the Supreme Court referred to copyright as “the engine of free expression.” It is because of copyright that freelance photographers can afford to invest in quality equipment and lend their time and expertise—expertise which itself required the investment of time and money—to documenting history. News media rely on the talents of journalists and must be able to invest in professionals. Copyright protects those investments (and the jobs of journalists) by enabling the work those journalists create—photographs, video footage, articles, interviews, news broadcasts, podcasts, etc.—to secure returns that allow journalists and other professionals to be appropriately paid, and quality journalism to thrive. To be clear, we are not suggesting that these events would go undocumented without paid journalists. What we are saying is that copyright supports investment in professional journalism, and the quality, training, skills and ethical requirements that accompany it.

The world is appropriately attuned to the protests and issues that directly relate to police brutality and systemic racism. And a crucial element in the fight for justice is ensuring that the press has adequate support and resources to continue bringing these issues to light. Copyright is one of the mechanisms for doing so.

The Senate Judiciary IP Subcommittee is currently in the midst of a series of hearings on the Digital Millennium Copyright Act (DMCA) which began in February 2020. The DMCA was enacted to combat online piracy. Just as copyright helps to protect and encourage investment in quality journalism, piracy undercuts these investments and in turn discourages future investment. This is especially true for journalists as business models have shifted the news from print to digital formats over the years. Simply stated: rampant online piracy is a direct threat to the future of a free and independent press. And with the kind of violence we’ve all witnessed taking place in front of the cameras, we shudder to imagine the kind of violence protesters would endure without the watchful eye of the media present.

An op-ed published in the Washington Post unjustly criticized the IP Subcommittee, as well as Don Henley and the other creators who were asked to testify on June 2, for “debating the nuances of copyright law” in the midst of this unrest. There is no doubt that last week’s DMCA hearing was far from the most significant or newsworthy thing to happen in recent weeks, but it was necessary. And while the link may seem attenuated on the surface, ensuring that copyright law is effective plays a critical role in enabling the press to report on the events unfolding all across the country, elevate the voices of marginalized communities, and hold those in power accountable.

Terrica Carrington is the Vice President of Policy and Copyright Counsel for the Copyright Alliance; Tom Kennedy is the Executive Director of the American Society of Media Photographers (ASMP); and Akili-Casundria Ramsess is the Executive Director of the National Press Photographers Association (NPPA).


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