[voyageur]

Today an interesting article in Wired magazine wonders about the importance of the media and copyright law in an age where the president has very few public press conferences and most of his appearances are made on copyrighted network talk shows. At hand is the case of Robert Greenwald, a documentary maker who asked permission of NBC to use a clip of Bush defending his decision to go to war on NBC's Meet the Press. NBC denied the request because the clip is "not very flattering to the president". It apparently is within NBC's right to refuse the request, however, it brings up some interesting issues:

The US president owns neither his words nor his image - at least not when he speaks in public on important matters. Anyone is free to use what he says, and the way he says it, to criticize or to praise. The president, in this sense, is "free." But what happens when the commander in chief uses private venues to deliver public messages, holding fewer press conferences and making more talk-show appearances? Who controls his words and images then?

Thoughts?

[Secret__Police]

Any interview should belong to the people regardless of the venue.
The speech/ interview should be in the public domain.

[zigzag]

I was recently reading something about JFK and I think it said that he averaged a live press conference every other week. That's pretty remarkable.

I applaud Greenwald for asserting his fair use rights - those rights need to be preserved and enhanced in general.

[zachs]

Anything he says to the public should be available for use. This stuff about how it's "not very flattering to the president" is a bunch of garbage. He went on and didn't give his best performence? Too bad.

And that goes for any president or any public official.

[dialo]

That damned liberal media is at it again

[MacNStein]

It's interesting to see what you guys think about copyrights. Any software developers in here?

[zachs]

Originally posted by MacNStein:
It's interesting to see what you guys think about copyrights. Any software developers in here?

Well even if it IS copyrighted, NBC should allow it to be used.

[MacNStein]

Originally posted by zachs:
Well even if it IS copyrighted, NBC should allow it to be used.

Why? It belongs to the network and/or the producer. They paid for the production of it, why should they be required to allow someone else access to it... and for PROFIT no less? Or, is Wired now a non-profit?

[zachs]

Originally posted by MacNStein:
Why? It belongs to the network and/or the producer. They paid for the production of it, why should they be required to allow someone else access to it... and for PROFIT no less? Or, is Wired now a non-profit?

Right, and the guy offered to pay NBC. But they still refused, so clearly this isn't about money. It's about them refusing because it isn't flattering.

[MacNStein]

Originally posted by zachs:
Right, and the guy offered to pay NBC. But they still refused, so clearly this isn't about money. It's about them refusing because it isn't flattering.

and if it were Kerry that had done the unflattering interview, liberals would be all for supporting those copyright laws. What does that say?

[zachs]

Originally posted by MacNStein:
and if it were Kerry that had done the unflattering interview, liberals would be all for supporting those copyright laws. What does that say?

I can't speak for others, but I would be saying the same thing.

[MacNStein]

Originally posted by zachs:
I can't speak for others, but I would be saying the same thing.

Easy to say when you're not in the same position.

[zachs]

Originally posted by MacNStein:
Easy to say when you're not in the same position.

Well if this ever comes up with Kerry, then you can call me on it. M'kay?

[dialo]

Originally posted by MacNStein:
It's interesting to see what you guys think about copyrights. Any software developers in here?

Software developers? The right people to ask would be librarians and copyright lawyers.

Why? It belongs to the network and/or the producer. They paid for the production of it, why should they be required to allow someone else access to it... and for PROFIT no less? Or, is Wired now a non-profit?

Well, it's not Wired that wants to use it, it's a film (Uncovered, which, incidentally, is a very good film).

Personally, I'm very much with lessig on this. And I'm in the first two categories above, though I almost went into the third like two of my family members did.

[Spliffdaddy]

Originally posted by zachs:
Well if this ever comes up with Kerry, then you can call me on it. M'kay?

bookmarked.

[zachs]

Originally posted by Spliffdaddy:
bookmarked.

[dialo]

I think in psychology it's called projection.

[constrictor]

Originally posted by MacNStein:
and if it were Kerry that had done the unflattering interview, liberals would be all for supporting those copyright laws. What does that say?

Well, I can't speak for liberals because I am a dyed-in-the-wool independent centrist, but I think (and hope) that this supposition of yours is way off base.

Our current president allows less access to his opinion about current goings on than any president in my memory. His press conferences are shamefully rare, and the ones he holds (outside of a foreign venue where his inclination to not do press conferences doesn't matter much) are scripted to an even more shameful extent.

I agree with some of Bush's politics, but I am ashamed to have voted for a man who runs the most secretive administation in recent memory. I pay his salary, and I'll be damned if I'm going to be satisfied with what I get from his more eloquent employees. My worst fears have come to fruition. When he took office, I felt confident that he chose qualified people for the job of *helping* him run the country. We have so little unscripted access to his thoughts on important issues, that I am all but left to believe that those employees basically run the country FOR him.

In short, I don't care whether NBC or the president feels a public interview he gave was unflattering. The president is an institution as much as it is a person trying to save face. All the American people should have access to what their PAID EMPLOYEE says in public, regardless of whether it is copyrighted or not.

Especially when we get such pitiful access to his views beyond stump speeches and state of the union addresses, I want to see this guy speak. If he stumbles over every unscripted word like he seems to have been doing this past week, then fine. Good enough reason for me not to make the same mistake twice. Not every issue is ****ing top secret...is it?

This should hold true whether the president (or other public official) is a Democrat, Republican, or anything else.

[Spliffdaddy]

Why don't liberals like to be referred-to as liberals?

[zachs]

Originally posted by Spliffdaddy:
Why don't liberals like to be referred-to as liberals?

This one takes it as a compliment.

[BlackGriffen]

Well, there are some good people in government fighting to return some semblance of balance to the system. Representative Rick Boucher, for instance, wants to make fair use just as much an exception to the DMCA as it is to copyright law. He's currently guest blogging at Lessig's blog, if you want to read his comments and give him feedback.

Sadly, both of the Pres candidates seem to be firmly on the side of the content lobby (MPAA/RIAA) because they rely on them too much for publicity.

Other than that, as a matter of principle I think that appearances by public officials while in office should be in the public domain. Those produces made plenty of money off of the original, and exclusive, airing of the program, I'm sure. If they want a proprietary show, they shouldn't invite public officials. They could have a segment with talking head "consultants" or other actors if they want proprietary. The public is paying for the official's salary, so the public should get its cut.

BlackGriffen

[constrictor]

Originally posted by Spliffdaddy:
Why don't liberals like to be referred-to as liberals?

Hehe...paranoia is rampant in America these days.

I won't get in to the specifics of my voting record with you, but let's just say you look like a fool making such accusations.

Furthermore, why antagonize the very sort of person the Republican candidate needs for re-election? As an independent, he is courting ME. Republicans and Democrats have had their minds made up for months now. It's a good thing for Bush that his campaign people are handling his message better than you.

[SimeyTheLimey]

Originally posted by constrictor:
Hehe...paranoia is rampant in America these days.

I won't get in to the specifics of my voting record with you, but let's just say you look like a fool making such accusations.

Furthermore, why antagonize the very sort of person the Republican candidate needs for re-election? As an independent, he is courting ME. Republicans and Democrats have had their minds made up for months now. It's a good thing for Bush that his campaign people are handling his message better than you.

The article says that NBC is the copyright holder, and that NBC refused to license the use of the clip. The dispute is entirely between two private parties. Why are you blaming the prez?

If I take a picture of the president, I own the copyright. The subject of the photograph could neither demand that I sell or license my copyright, nor could he demand that I not sell or license the copyright.

Of course, a subject can request that a copyrighted matter not be sold. Deep in my negative files, I have a very unflattering picture of the daughter of the then-Prime Minister of Great Britain. At the time I took the picure (1985) I probably could have sold it to one of the Tabloids. But I promised her I wouldn't do so, and I kept my word. Maybe NBC is similarly being honorable? The article doesn't say. But the fact that the picture is of a president makes no difference.

[SimeyTheLimey]

Originally posted by zigzag:
I applaud Greenwald for asserting his fair use rights - those rights need to be preserved and enhanced in general.

How is wanting to put a clip in a commercial product for rebroadcast "fair use"?

[TETENAL]

Originally posted by SimeyTheLimey:
How is wanting to put a clip in a commercial product for rebroadcast "fair use"?

17 USC § 107 · Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

[constrictor]

Originally posted by SimeyTheLimey:
The article says that NBC is the copyright holder, and that NBC refused to license the use of the clip. The dispute is entirely between two private parties. Why are you blaming the prez?

If I take a picture of the president, I own the copyright. The subject of the photograph could neither demand that I sell or license my copyright, nor could he demand that I not sell or license the copyright.

Of course, a subject can request that a copyrighted matter not be sold. Deep in my negative files, I have a very unflattering picture of the daughter of the then-Prime Minister of Great Britain. At the time I took the picure (1985) I probably could have sold it to one of the Tabloids. But I promised her I wouldn't do so, and I kept my word. Maybe NBC is similarly being honorable? The article doesn't say. But the fact that the picture is of a president makes no difference.

I am not "blaming the prez." Two separate points: 1) The president gives us woefully contracted access to his views through normal means. This is simply stating fact, I'm not blaming him for the NBC clip being withheld. 2) Especially in light of troubling access circumstances like this, the laws of this country should allow for the use of all public remarks that the American President makes, regardless of the venue or copyrights that apply to that content.

[dcmacdaddy]

Originally posted by MacNStein:
and if it were Kerry that had done the unflattering interview, liberals would be all for supporting those copyright laws. What does that say?

Originally posted by zachs:
I can't speak for others, but I would be saying the same thing.

Originally posted by zachs:
Well if this ever comes up with Kerry, then you can call me on it. M'kay?

Originally posted by Spliffdaddy:
bookmarked.

Bookmark my reply as well.

I would say the same thing (that NBC's decision is about politics and not money as the guy offered to pay to use the clip) whether it was Bush, Kerry, Clinton, or Reagan.

[zigzag]

Originally posted by SimeyTheLimey:
How is wanting to put a clip in a commercial product for rebroadcast "fair use"?

I agree with TETENAL's answer. The point of the fair use provision is that public interests sometimes outweigh private interests. That the film is a commercial production would definitely weigh against a fair use argument, but it wouldn't be dispositive - it's also commentary.

I recognize the private interest here (and your photo is a good counter-example), but I think the President's public policy statements are of sufficient import that they should be usable in this context. If he gets sued, Greenwald might well lose, but I support the intent, whether it's a clip of Bush or Clinton or whoever.

The more I think about this case, the more interesting it gets. What if a President makes some substantive remarks about public policy at a private function - say a fundraiser - and it just happens to get videotaped? Should Greenwald have free access to that? As with your photo, I would say no, because it was a private function and there was no expectation that it was for public consumption (if, on the other hand, he lawfully obtains a copy of the tape, it might shift the balance). The NBC interview, on the other hand, was specifically for the purpose of discussing public policy and was broadcast to the public without limitation. In fact, I assume that that's how Greenwald obtained his copy - by taping it off the air. Using one minute of it for the purpose of commentary strikes me as reasonable.

What if NBC had never aired the interview? Unlikely, but it happens. Should it have to provide a copy to Greenwald? I would say no - as with your photo, NBC does have a right to control its physical property, in this case a tape. In weighing the pros and cons, I think the fact that they broadcast it makes a difference.

What if Greenwald only used the parts in which the President is speaking? What if he only wanted to use a transcript of the show? One could go on and on - that's why fair use cases have to be decided on a case-by-case basis.

The more I delve into the copyright arena, the more I think, like BG, that things have gotten out of balance. I'm not calling for free file-sharing or anything, I just think the laws need some readjustment. There should be room for this sort of thing. That NBC would prevent the use of a President's public policy statements because they're "unflattering" underscores the problem.

IMO, the underlying purpose of copyright is to advance the culture. The grant of exclusive rights, and the resulting pecuniary incentive, is just one means of doing that - it's not the primary goal. Fair use is another means - where private interests would impede rather than advance the culture, fair use provides an outlet. It's a difficult balancing act.[/soapbox]

OK - are you gonna show us the photo or not?

[SimeyTheLimey]

Originally posted by zigzag:
I agree with TETENAL's answer. The point of the fair use provision is that public interests sometimes outweigh private interests. That the film is a commercial production would definitely weigh against a fair use argument, but it wouldn't be dispositive - it's also commentary.

I recognize the private interest here (and your photo is a good counter-example), but I think the President's public policy statements are of sufficient import that they should be usable in this context. If he gets sued, Greenwald might well lose, but I support the intent, whether it's a clip of Bush or Clinton or whoever.

The more I think about this case, the more interesting it gets. What if a President makes some substantive remarks about public policy at a private function - say a fundraiser - and it just happens to get videotaped? Should Greenwald have free access to that? As with your photo, I would say no, because it was a private function and there was no expectation that it was for public consumption (if, on the other hand, he lawfully obtains a copy of the tape, it might shift the balance). The NBC interview, on the other hand, was specifically for the purpose of discussing public policy and was broadcast to the public without limitation. In fact, I assume that that's how Greenwald obtained his copy - by taping it off the air. Using one minute of it for the purpose of commentary strikes me as reasonable.

What if NBC had never aired the interview? Unlikely, but it happens. Should it have to provide a copy to Greenwald? I would say no - as with your photo, NBC does have a right to control its physical property, in this case a tape. In weighing the pros and cons, I think the fact that they broadcast it makes a difference.

What if Greenwald only used the parts in which the President is speaking? What if he only wanted to use a transcript of the show? One could go on and on - that's why fair use cases have to be decided on a case-by-case basis.

The more I delve into the copyright arena, the more I think, like BG, that things have gotten out of balance. I'm not calling for free file-sharing or anything, I just think the laws need some readjustment. There should be room for this sort of thing. That NBC would prevent the use of a President's public policy statements because they're "unflattering" underscores the problem.

IMO, the underlying purpose of copyright is to advance the culture. The grant of exclusive rights, and the resulting pecuniary incentive, is just one means of doing that - it's not the primary goal. Fair use is another means - where private interests would impede rather than advance the culture, fair use provides an outlet. It's a difficult balancing act.[/soapbox]

OK - are you gonna show us the photo or not?

On the fair use issue. Fair use comes up where an individual already has lawful access to a work for one purpose -- for example, a person buys a copy of a book for himself. Then he decides to reproduce part of that book for another purpose covered by the statute Tetenal quotes. Fair Use would be a defense if the copyright owner decided to sue for infringement. But I am unaware that fair use can be used as an argument to compel the copyright owner to produce a copyrighted work. I don't think it works like a private version of a FOIA request. So I don't think fair use is the issue for the filmmaker here. If he already had the work, it might be his defense. But it isn't a cause of action.

Secondly, I don't think fair use would in any way hinge on the content of the work. As far as I can tell, the newsworthyness of a work doesn't make it any less copyrightable. If it were, then Time, Inc. wouldn't have paid Zapruder millions for his film of the Kennedy Assassination. The very thing that made it worth the money -- its newsworthyness -- would have made its copyright unenforceable. The upshot would be that everything in a newspaper would be without copyright, since by definition, everything in a newspaper is newsworthy. Newspapers and other media might well go out of business under that model, and that would hardly be in the public interest. Copyright is all about balancing public interests, so that is important to consider. The bottom line is that I don't think it makes any difference that this is a snippet of the president. Both the copyright owner and the public have the same balanced rights to the work that they would have with any other content.

[zigzag]

Originally posted by SimeyTheLimey:
On the fair use issue. Fair use comes up where an individual already has lawful access to a work for one purpose -- for example, a person buys a copy of a book for himself. Then he decides to reproduce part of that book for another purpose covered by the statute Tetenal quotes. Fair Use would be a defense if the copyright owner decided to sue for infringement. But I am unaware that fair use can be used as an argument to compel the copyright owner to produce a copyrighted work. I don't think it works like a private version of a FOIA request. So I don't think fair use is the issue for the filmmaker here. If he already had the work, it might be his defense. But it isn't a cause of action.

Unless I read the article wrong, it appears that he already has a copy, because he's using it. Presumably, he taped it off the air, or got it from someone who did.

As I said, I agree that fair use wouldn't compel someone to produce a work that wasn't already available. But here, the work was broadcast, and there are probably thousands of lawful copies out there.

Secondly, I don't think fair use would in any way hinge on the content of the work. As far as I can tell, the newsworthyness of a work doesn't make it any less copyrightable. If it were, then Time, Inc. wouldn't have paid Zapruder millions for his film of the Kennedy Assassination. The very thing that made it worth the money -- its newsworthyness -- would have made its copyright unenforceable. The upshot would be that everything in a newspaper would be without copyright, since by definition, everything in a newspaper is newsworthy. Newspapers and other media might well go out of business under that model, and that would hardly be in the public interest. Copyright is all about balancing public interests, so that is important to consider. The bottom line is that I don't think it makes any difference that this is a snippet of the president. Both the copyright owner and the public have the same balanced rights to the work that they would have with any other content.

The content of the work would definitely be a factor. Here's the remainder of the statute:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Those are just the standard factors - a court could consider others.

I'm not necessarily saying that Greenwald would win, nor am I arguing for wholesale copying of copyrighted news items. But I would probably support the use of this particular work in this particular context, and if the law doesn't presently allow it, I would support an expansion of the law.

[FWIW, the Zapruder film wasn't broadcast, so like your photo it retained a lot more market value in Zapruder's hands, and he couldn't be compelled to share it except by subpeona.]

Licensing fees are often paid simply to avoid the risk of lawsuits. Presumably, that's why Greenwald offered to pay for his use here. Now that NBC has declined, he's going to test the limits of the fair use doctrine. If they sue, NBC runs the risk of bad publicity (not to mention calling the liberal media theory into question ). It's a calculated risk for both parties.

My guess is that NBC turned Greenwald down either on direct pressure from the White House, or because they knew implicitly that if they allowed it, they'd lose access to the President or suffer some other indignity, like not getting invited to afternoon tea. Now that Greenwald is calling their bluff, the next question is whether the White House will pressure NBC to sue, or whether it'll be satisfied with NBC's initial response. I doubt NBC wants to risk the publicity that would come with a lawsuit - it would be difficult to live down the impression that they're sucking up to the White House.

[SimeyTheLimey]

Originally posted by zigzag:
I'm not necessarily saying that Greenwald would win, nor am I arguing for wholesale copying of copyrighted news items. But I would probably support the use of this particular work in this particular context, and if the law doesn't presently allow it, I would support an expansion of the law.

Then my advice to him is to call NBC's bluff. If he really thinks he's within fair use grounds, then he should use it and and wait to see how strong the cease and desist letter is.

To be honest, I really don't care that much about either of them. It's nothing but a dispute between private parties. This is not the contours of the First Amendment here. The Copyright statute is a statute of general applicability. It isn't like the text of the statute can predict every situation. There is no general exception in the statute for pictures of government officials being interviewed by journalists the way that there is an exception for US Government publications. That's because the news business is a business. If you don't let them have some control over their content, then you won't have a news business. That wouldn't be in the public interest. So you have a general statute that balances competing interests.