The “fair use” exception in news reporting

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The footage of the fatal shooting of an unarmed man, Walter Scott, in the back by a police officer in South Carolina quickly went viral. The story was upsetting and now it is reported that the man who shot the video, Feidin Santana, has instructed representatives to send cease and desist letters to news outlets demanding that they pay him for showing the footage. It is reported that Mr Santana is requesting $10,000 for permission to show the footage, although it is also reported that some news agencies are being asked for more and others for less.

Whilst the story might seem a little unedifying, it is only fair to say that this is by no means a first. A video of a mob attacking a man during the LA riots in 1992 made thousands of dollars for the man who shot the video and then sold the rights to it to broadcasters. Similarly, people who took videos of the child murder victim JonBenet Ramsey sold footage of her dancing, the broadcasters reportedly having shown the footage for months before they agreed to pay for it.

It may be unarguable that copyright in the footage is owned by Mr Santana so he may have the basis for a claim. The media organisations, should they be sued for copyright infringement, may seek to rely on the US “fair use doctrine”, which is similar to the “fair dealing” exception which applies in UK copyright law. The fair use doctrine is an exception to the exclusive right given to a copyright owner and permits limited use of copyright material without the copyright owner’s consent for the purposes of, for example, commentary, criticism, parody, research, teaching, library archiving – and news reporting.

Factors relevant under US law in considering what is fair include:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  • the nature of the copyright material;
  • the amount of the portion used in relation to the copyright material as a whole; and
  • the effect of the use upon the potential market for, or value of, the copyright material.

The fair use doctrine arguably has not kept pace with developments in technology, and, if the case does end up in court (and it is extremely early days), it will be very interesting to see how the judges apply it in a very modern context.