What is fair use in a copyright context? This is rarely an easy question to answer, but a recently filed case will again tackle this enigmatic doctrine.
In F. Mark Schaffel Productions, LLC v. Fox News (CV 10-00117SJO), the plaintiff sued over use of certain interviews plaintiff conducted with Debbie Rowe, the ex-wife of the late Michael Jackson. The interviews addressed Rowe’s relationship with Jackson and their children. According to the complaint, portions of those interviews were broadcast “around the world” in 2003 as part of a larger work entitled “The Michael Jackson Interview: The Footage You Were Never Meant to See.” (Complaint, par. 9.)
In July of last year, after Jackson’s headline death, Fox News allegedly broadcast portions of those interviews. As plaintiff states in the complaint, “[i]n the midst of the media feeding frenzy sparked by the sudden death of Michael Jackson, concepts of copyright ownership were ignored or disregarded as cable news networks desperately tried to juice their ratings and income by broadcasting, as news, anything related to the late superstar.” (Complaint, par. 1.) Wow. Much juicer than most pleadings, but a lot more fun to read.
“In a quest to satisfy its unquenchable thirst to broadcast anything with Michael Jackson, Fox News, as part of the vast News Corporation broadcasting empire, one of the fiercest defenders of its own intellectual property from unauthorized exploitation, demonstrated no hesitation in exploiting the work of others without payment or permission.” (Complaint, par. 1.) Specifically, “On July 5, 2009, substantial portions of the [Rowe] Interview were broadcast . . . as part of Fox’s show, “Geraldo At Large.” (Complaint, par. 10.)
Now whether any of that is true, I don’t know. I do know, however, that it reads like a tabloid article. So of course, I’m hooked. Get me another cup of coffee ’cause I’m going to sit back and enjoy this one.
According to the complaint, Fox has claimed that its use of the material was covered by the fair use doctrine. The complaint reports that Fox “rebuffed Schaffel’s claims of infringement by claiming the 6-year old work was suddenly so newsworthy that Fox had a ‘fair use’ right to ignore basic copyright law protections and broadcast Schaffel’s work on one of its quasi-news shows without seeking or obtaining any permission or consent.” (Complaint, par. 2.) (The complaint then goes on to state quote Rupert Murdoch, chairman of News Corp saying “[i]ironically, if not hypocritically” that the BBC and other news organizations regularly steal their content from Fox, and “we’ll be suing them for copyright.” (Complaint, par. 3.))
O.k., so let’s look at the fair use doctrine. The doctrine is codified in section 107 of the Copyright Act, but has been further developed by case law over the years. It contains a nonexclusive list of purposes for which reproduction of a protected work may be considered “fair.” These include use in connection with criticism, comment, news reporting, teaching, scholarship, and research. With this as a backdrop, Section 107 sets forth four factors that the court may consider when determining whether use is fair. These are:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for, or value of, the copyrighted work
The most significant of these factors is the last one. If the copy lessens the demand for the original work, it becomes difficult to claim fair use. On the other hand, if the copy is used strictly for purposes of, e.g. news reporting, it is more likely to be deemed a fair use.
So, was Fox News’ use “fair”? Was it news reporting or was it commercial?
The court will likely look at whether the material was truly news worthy. Did it apply to Jackson’s death, the custody over his children, or was it merely a commercial use intended to capitalize on the hype over Jackson’s death? It will be interesting to see whether other news organization likewise saw this material as worthy of inclusion.
The parties will also certainly argue about how much of the material Fox used. The complaint assert that almost 10% of the Geraldo show “consisted of the interview.” (Complaint, par. 10.) Even taking that estimate as accurate (and I have no idea whether it is), is that enough to impact the “potential market for, or value of, the copyrighted work”?
So where does this come down? Infringement or fair use? Well, you be the judge.
Jonathan Pink heads the Internet and New Media Team at Bryan Cave, LLP. His practice focuses on intellectual property and business litigation matters, including claims for trademark, copyright and patent infringement. He is resident in the firm’s Irvine (Orange County) and Los Angeles offices.