The New York Times reports that an Australian based “publicity and celebrity management company” representing Feidin Santana, is sending cease-and-desist letters to media outlets demanding they pay for the use of the video Santana captured. That video shows a North Charleston police officer shooting an unarmed man, Walter Scott in the back as Scott ran away from the officer.
The Times’ story quotes Santana’s attorney, Todd Rutherford:
The lawyer, Todd Rutherford, said it was only fair for Mr. Santana to start getting paid for something that news outlets benefited from.
“The search for justice is served by turning the video over to law enforcement,” Mr. Rutherford said. The news media, he said, appeared to be in the “search for revenue.”
The New York Daily News reports that Max Markson, CEO of the Sydney-based Markson Sparks group says the cease-and-desist letters went out to 10 major media companies and more will get them soon.
The Daily News reports:
“The only people who perceive it as bad taste are the ones who wouldn’t pay for it,” Markson said when asked about the belated billing. “Most are happy to pay.”
The Daily News also quotes Markson as saying the $10,000 license is not a blanket fee. Some will pay more and some less.
Erica Salkin, a media law assistant professor at Whitworth University says the key question in whether Sanata can demand payment has to do with the “fair use” provision of U.S. copyright law. “Fair use protects media use of copyrighted material in its pursuit of news. So the real question here is, ‘Is this no longer news?”‘
Mickey H. Osterreicher, General Counsel for the National Press Photographers Association wrote in an email:
I think that had this video been licensed to the media at the outset, either as an exclusive (to one organization or another) that would have been more palatable in the court of public opinion than doing so after-the-fact. I also think that the $10,000 price may offend some people but had it been licensed as an exclusive, a $100,000 price tag might have been paid without blinking.
There is no question that the copyright in the video vests with Mr. Santana (unless he transferred that right) and it is up to him or his agent as to what he wants to do with this work. Those that now wish to use the video might make a fair use argument if the story is actually commenting on the taking of the video itself rather than to illustrate the story of the shooting, but fair use is a defense to be asserted after you have been sued for copyright infringement, to be determined by a court, and not something one gets to claim and then proceed with the use without peril of being sued. See the recent settlement by Fox in its use of the iconic 9/11 photo without a license.
Media companies have, on occasion, paid for the use of copyrighted video that was once news. The video from the 1992 LA riots, in which a mob dragging Reginald Denny from his truck and beating him beat him, generated thousands of dollars for the man who captured the video and sold the rights to use it to media. A video of JonBenet Ramsey dancing showed up on TV regularly for months, but later, the people who captured the video asked for and received payment from media companies. (See this story I wrote in 2006 about the battle over the rights to the Ramsey videos.)
The U.S. Copyright Office offers this background on the fair use rule:
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
There are specific exemptions to the Act, including newsworthiness, which I highlighted in two of the sections:
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”