The New York Times reports that publicity and celebrity management company Markson Sparks is attempting to charge news outlets up to $10,000 for using the video of the Walter Scott shooting. Their story includes this “expert” opinion:
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.
“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.
Already, other outlets (NY Mag, Gawker, Buzzfeed) are reblogging the story without questioning its basic premises. This is not actually how fair use works. It’s not how newsworthiness works. For journalists to miss the boat on this one is deeply troubling.
“The Times has gotten its wires crossed here,” said Christopher Sprigman, a professor at NYU Law who teaches copyright. “The video is newsworthy. The video was newsworthy the day it was shot, and it continues to be newsworthy. That’s why TV stations want to use it. This is a paradigm case for fair use.”
James Grimmelmann, a professor at University of Maryland Law School who teaches classes on intellectual property, also criticized Haber’s statement. “The distinction between ‘newsworthy’ and ‘commercial’ is like the distinction between ‘red’ and ‘round.’ Of course news agencies make money reporting the news; that’s what we pay them for.”
Fair use isn’t just “clauses in the law,” it’s an entire legal doctrine that predates the current Copyright Act. Fair use isn’t incidental to copyright law. According to copyright scholar Neil Weinstock Netanel, a law professor at UCLA Law School, recent Supreme Court decisions indicate that fair use is what keeps copyright law from "running afoul of the First Amendment." Only through fair use and other "built-in First Amendment accommodations" can copyright law "satisfy First Amendment scrutiny."
Indeed, fair use is integral to the freedom of press, so much so that the actual text of 17 U.S.C. § 107, the section on fair use, explicitly mentions “news reporting.”
The case of the Walter Scott video does have an uncanny resemblance to LANS v. CBS, where the Los Angeles News Service sued news outlets for broadcasting a video they had taken of Reginald Denny’s beating. But although LANS prevailed against “commercial” users, it lost on fair use by news media. And regardless, the case doesn’t perfectly parallel what’s going on with the Walter Scott video.
“Some of the crucial facts in the Reginald Denny case aren’t present here,” said Grimmelmann. “For one thing, LANS was in the business of taking video for news broadcasts. That’s why they sent up a helicopter during the riots. Helicopters aren’t cheap. Take away the licensing fee and you directly interfere with their ability and incentive to film important events.”
The same logic doesn’t play out here: “People don’t buy cell phones in the hope that they’ll pay back the cost by filming police shootings.” But he added, “So the copyright case could go either way, and it depends on how exactly a news outlet uses the clip.”
A non-newsworthy use could certainly kill a fair use claim, but the important thing here is that fair use does not have an expiration date. Matthew Schruers, Vice President of Law & Policy at the Computer and Communications Industry Association, pointed out on Twitter that in a lawsuit over the Zapruder film, courts found fair use years after the Kennedy assassination.
The “expert” opinion written up in the New York Times is just not how fair use actually works, and that has a lot to do with who the New York Times approached for an opinion.
“It’s noteworthy that the views on copyright expressed in the Times article come from a particular source, the Copyright Clearance Center,” said Sprigman. “The Copyright Clearance Center’s business is licensing everything they possibly can. They don’t believe in fair use.”
Schruers was more evocative in his language. “Asking a licensor if a license is needed is like asking a Realtor if now is a good time to buy or sell a house.”
Although the Times seems to imply that they did not receive a cease-and-desist because they had procured permission from Walter Scott’s family, that logic doesn’t follow. Because of how copyright works, Walter Scott’s family doesn’t have any ownership in the video, and this $10,000 licensing scheme was not set up on their behalf. This may not seem fair, but keep in mind that copyright law was designed to compensate artists, not to monetize the documentation of police violence. Notably, the actual creator of the video, Feidin Santana, was fuzzy on the details of the licensing arrangements his lawyers had made. According to the Times, “He later recalled that his lawyer mentioned something about charging for it, but said he did not understand.”
Note: The author co-writes a copyright newsletter. She is a 2014 law school graduate.
