As you probably heard, last week there was a big story involving North Carolina police officer Michael Slager being charged with murder for the shooting death of Walter Scott. Slager had told a story about how Scott had taken his taser. But, a few days later, a bystander’s video of the incident was released and told a very different story. If you didn’t see it, here is the video, which is rather graphic, seeing as someone is shot to death in the video.
Well… that is until a copyright angle was added to the story. You see, the guy who actually shot the video, Feidin Santana, has apparently hired a publicist who is demanding news stations pay up for showing the video. And yes, news stations are playing the video so often that it’s become a Jon Stewart punchline. Sanata had initially been anonymous, and claimed that he was worried about retribution, but since coming forward has apparently decided that he might as well cash in.
The publicist who is apparently going around trying to charge for this (one assumes after being retained by Santana) has some interesting views on how this all works:
“It’s been allowed to be used for free for over a week now,” Max Markson, CEO of the Sydney-based Markson Sparks group, told the Daily News.
“Now it’s going to be licensed and now you have to pay for it.”
But there’s a big problem with this plan, and that is known as “fair use.” News reporting is one of the fundamental parts of fair use. Unfortunately, the reporter from the NY Times, Frances Robles, seems to have very little knowledge about fair use and relied on a ridiculously biased expert to argue otherwise. She spoke with Frederic Haber of the Copyright Clearance Center, an organization that goes around trying to license everything and is fundamentally against fair use. And yet, Robles insisted that “copyright experts agree” that fair use somehow no longer applies:
Copyright experts agreed that although news agencies are allowed to use even copyrighted material under what is called “fair use” clauses in the law that time period has passed.
Many actual copyright experts challenged Robles about this issue on Twitter, and she insists she spoke to two others besides Haber and they all agreed, though when questioned, she refused to name who those copyright experts were. And that’s a problem, because all three of those copyright experts — assuming Robles actually found three — are wrong. There is no “time limit” element to fair use. At best someone might try to argue that after a certain period of time the piece was no longer newsworthy and thus fair use no longer applied, but that seems like a huge stretch.
There is no fair use in Australia, so perhaps that’s why Markson is so confused. Take, for example, the nonsensical statement he gave Buzzfeed:
“Fair usage for video exists and networks can still use it for a certain amount of time,” Markson further explained, “like with footage from the Olympics, but the fair usage fee is for people who want to use it again. And in the lead-up to the trial we expect there will be more requests for licensing.”
This makes no sense. There is no such thing as a “fair usage fee.” Markson doesn’t seem to have any idea how fair use works, and it’s unfortunate that the NY Times report that many people are basing their own reporting on isn’t any better.
There is plenty of case law that I’m sure any real “copyright expert” would have passed along to Robles had she asked them. Hell, just last year there was a good fair use ruling saying that Bloomberg was allowed to distribute a recording of Swatch’s investor calls. The idea that time does away with fair use doesn’t make much sense. There’s a 1968 case in which Time Life sued Random House and others claiming that using stills from the famed Zapruder film of President Kennedy’s assassination was infringing, but the court found it to be fair use, despite it happening years after the film was made (rather than weeks in the case of the Walter Scott video). Then there’s the case involving video footage of the beating of Reginald Denny, in which the videographers sued CBS over their use and distribution of the footage (including that it was briefly broadcast on Court TV). Here again, courts found the use to be fair use noting:
We conclude that each factor, particularly the nature of the copyrighted work, weighs in favor of fair use except the substantiality of the use, which we treat as neutral. Accordingly, we agree with the district court that Court TV’s use was protected, and we affirm the grant of summary judgment in its favor.
So it seems rather difficult to see how fair use magically disappeared, no matter what Frederic Haber or the mysterious other two “copyright experts” told Robles.
“At some point it’s not newsworthy anymore and you are using it for commercial benefit,” said Frederic Haber, a vice president and general counsel of the Copyright Clearance Center, a collective licensing organization that works on behalf of copyright holders such as The New York Times. The issue could change once the video is played in court during a trial, he said.
Robles later also seems more confused about how copyright works in suggesting that because Walter Scott’s family gave the NY Times the video, it wouldn’t be subject to these demands for payment:
The Times has used the video with the family’s permission and not received a cease and desist letter.
That sounds good but is meaningless. The Scott family doesn’t have the copyright on the video. Santana does. They have no right to license it and the NY Times is clearly relying on fair use in its presentation as well.
Unfortunately, because most reporters don’t really want to bother to understand the issue, many took the NY Times report and ran with it, insisting that, yes, media outlets now have to pay to continue using the video. Even the Poynter Institute, which should know better, ran with a headline saying that the “media must pay“ to continue using the video. The article itself at least discusses the fair use issue, but the headline seems to ignore that.
I’m guessing that many big news organizations will just pay up, because it’s cheaper than fighting, but they have every right to fight this attempt to undermine fair use. The video is newsworthy and its use in reporting is the kind of quintessential example of fair use that is often used to show how fair use works.