Fair Use: The Foundation Of Jon Stewart's Success

from the celebrating-fair-use dept

Fri, Feb 13th 2015 11:37am — Jonathan Band

Jon Stewart's announcement on February 10 that he will be retiring from The Daily Show later this year has been met with tributes to his comic genius and his impact on political discourse. But these tributes have overlooked the legal doctrine that has enabled Stewart to be so effective: fair use. (This is my second post this week about the importance of fair use to popular culture; on Tuesday I wrote about how the Fifty Shades of Grey trilogy was first written as fair use-dependent fan fiction based on the Twilight vampire series.)

Stewart's most powerful critiques result from his juxtaposing clips of politicians and commentators on news broadcasts to demonstrate their hypocrisy. He'll contrast a clip of a Fox News commentator expressing outrage at President Obama taking a particular action with a clip of the same commentator praising President Bush for taking a similar same action. Stewart also uses montages of clips from CNN and other news networks to demonstrate their simultaneously sensationalistic and superficial coverage of disasters and trials. But for fair use, Stewart's rebroadcast of these clips would be willful copyright infringement, subject to statutory damages of up to $150,000 per clip.

Jon Stewart's heavy use of clips for the purpose of humorous political criticism has inspired other comedians to emulate him, most notably his former "correspondents" Stephen Colbert on The Colbert Report and John Oliver on Last Week Tonight. Stewart's reliance on clips no doubt has also encouraged the growth of the remix culture online, where individuals combine clips of preexisting works for the purpose of political or artistic expression.

Stewart's reliance on fair use likely made him progressive on other copyright matters. He supported fans distributing excerpts of The Daily Show online, he questioned the position of Viacom (the owner of Comedy Central, the channel that carries The Daily Show) in its litigation with YouTube, and he opposed SOPA.

Additionally, Jon Stewart's fair use of clips has had a positive impact on policymakers. The Daily Show is perhaps the easiest example to give lawmakers and their staffs of the importance of fair use. A reference to The Daily Show makes them instantly understand how fair use functions, in Supreme Court Justice Ruth Bader Ginsburg's words, as one of the copyright law's built-in accommodations to the First Amendment. Further, The Daily Show demonstrates clearly that large media companies (e.g., Viacom) rely on fair use.

Jon Stewart has not announced what he will do after he leaves The Daily Show. But it is hard to imagine that the greatest practitioner of fair use in this generation will not at some point embark on another venture that employs fair use.

Reposted from the Disruptive Competition Project

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Filed Under: clips, copyright, fair use, jon stewart, journalism, news, reporting, satire
Companies: viacom

23 Comments

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antidirt (profile), 13 Feb 2015 @ 12:03pm

I'm with you on Jon Stewart relying heavily on fair use, as you noted his use is "for the purpose of humorous political criticism." That's quintessential fair use. But you lose me on the fan fiction claim. I think sometimes it's transformative fair use and sometimes it's infringement of the derivative right. That has to be determined on a case-by-case basis. A derivative work is one in which the original is "recast, transformed, or adapted." 17 USC 101. That would cover a lot of fan fiction. Your claim (in the first post) that "[f]an fiction is a quintessential fair use" appears to be writing the derivative right out of the Copyright Act.
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Anonymous Coward, 13 Feb 2015 @ 12:15pm

Re:
Copyright is not intended to prevent works from being incorporated into culture. It is intended to enable people to capitalize on their creations. Someone who writes a Twilight fanfic and shares it with their friends is not infringing on a copyright in the same way that they would not infringe on a copyright by posting their critique of the Twilight novel and describing in detail how they would have changed the plot to make it better.

When the author of 50 Shades wanted to sell her awful Twific, she changed all the names but left the story more or less intact. Writing her stories surely wasn't a problem, only selling them.
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scote, 13 Feb 2015 @ 12:22pm

The daily show also has a massive custom media capture and archiving system that records video streams from the networks along with the closed captions so the show can do text-based searches of the news programs - a system only possible due to fair use. Yet their system is not available to the general public because fair use is something the Daily Show can get away with, and the specialty vendor can get away with making for an entrenched media company, but not for individual consumers.

http://arstechnica.com/gadgets/2013/09/with-30-tuners-and-30-tb-of-storage-snapstream-make -tivos-look-like-toys/
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jupiterkansas (profile), 13 Feb 2015 @ 12:23pm

Re:
ALL fair use must be determined on a case-by-case basis. That's one of the problems with fair use. Just because nobody took Jon Stewart to task doesn't mean he was immune from lawsuits. And if his show wasn't comedy - more people might have taken issue with his use of copyrighted content. And since most fan fiction is parody, that puts most of it squarely in fair use territory.
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Anonymous Coward, 13 Feb 2015 @ 12:30pm

My only gripe is that, aside from John Oliver now, where do I get my legit news from¿ Colbert Report and The Daily Show were my sources for American news.
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Anonymous Coward, 13 Feb 2015 @ 12:30pm

Re:
What the heck are you talking about. Anyone with the necessary funds could buy and use a huge DVR system like that and be completely within the bounds of the law. They could even use clips for commentary on YouTube and that would be classic fair use. There is no reason to say that The Daily Show only gets away with it because they work for Comedy Central.
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Vidiot (profile), 13 Feb 2015 @ 12:35pm

Fair Use as a source of revenue
Ergo, Fair Use has enriched Viacom/CBS substantially. They really shouldn't be the loudest voice decrying Fair Use, eh?
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Scote, 13 Feb 2015 @ 12:37pm

RTA
From the link I posted earlier:

"The reason for this and for the other features' absence on the consumer side is easy to articulate: at its core, the goals of the SnapStream system are at odds with the things that cable providers want DVRs to be able to do. "A lot of what our solution does is what they don't want you to do—I want to record this at one central place and view it at thousands of different locations, or take a portion of it and e-mail it out. That's exactly what the limitations [on consumer DVRs] are there to prevent," said Thompson.

SnapStream, though, operates sort of on the other side of the curtain. The customers who are in the position to perform grand feats of copyright infringement are actually the exact same customers who would be filing the copyright infringement lawsuits. As long as the open recording and sharing of full broadcast-resolution TV stays in the realm of the media production companies making the TV in the first place, no one gets upset. And SnapStream let me know that they currently have no private individuals as customers—no crazy billionaires with SnapStream systems in their crazy billionaire mansions, so the systems all remain in the hands of ostensibly responsible, non-infringing entities."
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Anonymous Coward, 13 Feb 2015 @ 12:48pm

Re:
The daily show also has a massive custom media capture and archiving system that records video streams from the networks along with the closed captions so the show can do text-based searches of the news programs - a system only possible due to fair use. Yet their system is not available to the general public because fair use is something the Daily Show can get away with
The Internet Archive has a public system like this. "At Internet Archive, we want to make everyone into a Jon Stewart research department. So we’ve made it possible to search television news since the middle of 2009 using closed captions or program transcriptions. Users can also get short clips on the web, or if they want to borrow a whole program, we’ll print it onto a DVD and lend it out."
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John Fenderson (profile), 13 Feb 2015 @ 12:49pm

Re: Re:
"ALL fair use must be determined on a case-by-case basis. That's one of the problems with fair use."

That is, perhaps the largest problem with fair use. You have to be sued before you can claim fair use, and for most people just getting sued is enough to seriously harm them whether or not they prevail in the suit.
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antidirt (profile), 13 Feb 2015 @ 12:53pm

Re: Re:
Copyright is not intended to prevent works from being incorporated into culture. It is intended to enable people to capitalize on their creations.

It’s intended to do both. It allows authors to prevent works from being incorporated into culture in certain ways. For example, an author controls the initial public distribution of a copy of the work. And it grants the author control over reproductions, both private and public. Of course, authors don’t have total control over their works, such as when uses are excused by the fair use or first sale defenses. But it’s incorrect to say that authors can’t prevent certain methods of incorporation into culture. That’s exactly what the exclusive rights in Section 106 do.

Authors have the right “to prepare derivative works based upon the copyrighted work,” and a “derivative work” is one that “recast[s], transform[s], or adapt[s]” the original. Clearly, much of fan fiction is derivative and thus infringing. This is one of the ways copyright “is intended to enable people to capitalize on their creations,” as you put it. It’s also one of the ways that copyright “prevent[s] works from being incorporated into culture.” It's simply not true that copyright is intended to promote cultural incorporation, no matter what.
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scote, 13 Feb 2015 @ 1:04pm

"You have to be sued before you can claim fair use,"

Not quite. You have to sue (for a declaration) or be sued to *prove* fair use. You are free to claim it at any time.

I think you mean that fair use is inherently risky because it lacks bright lines.
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Anonymous Coward, 13 Feb 2015 @ 1:17pm

Re: Re:
But where does the inspiration come from? If she has to tingle too much with the stories to avoid infringing when publishing in other ways, what is the chance of her not doing so?

The challenge for copyright is mostly how difficult it is to handle and understand. If you want to determine where copyright, de minimus and exceptions applies, even if you hold it to a single jurisdiction, you could write a long series about it without being exhaustive! Add in the complexity of non-economic rights and the - lack of - logic behind the different requirements and we have a trap!

The obscurity is chilling peoples interest in sharing their work since it can cause so much grief if what you do is percieved as grey area.

When you say that fanfiction is non-infringing, that judgement is far too broad. And moral rights are not created to allow capitalization of creations.
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Anonymous Coward, 13 Feb 2015 @ 1:28pm

Re: Re: Re:
You're completely full of shit. Copyright can't prevent me from creating a derivative work. It can only prevent me from publishing it in some cases.
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Anonymous Coward, 13 Feb 2015 @ 1:48pm

Re:
Then the fucking law should be clearer. Ambiguity benefits the defendant in the relevant case law, unless evidence proves otherwise.
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antidirt (profile), 13 Feb 2015 @ 2:01pm

Re: Re: Re: Re:
You're completely full of shit. Copyright can't prevent me from creating a derivative work. It can only prevent me from publishing it in some cases.

I'm not sure how accurately discussing the law makes me "completely full of shit." It's infringement to create a derivative work, even if you keep it to yourself. It's not the public derivative right, it's the derivative right. Naturally, if you keep it to yourself, chances are you won't get caught. But it's nonetheless infringing.
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John Fenderson (profile), 13 Feb 2015 @ 2:04pm

Re: Re:
"It is intended to enable people to capitalize on their creations."

Not really. People can capitalize on their works even in the total absence of copyright. Copyright is a simple deal: in exchange for copyright holders getting a temporary monopoly, the public gets to own the works when the monopoly ends.

The primary purpose of copyright is to benefit the public, not the copyright holders.
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John Fenderson (profile), 13 Feb 2015 @ 2:07pm

Re:
"You have to sue (for a declaration) or be sued to *prove* fair use. You are free to claim it at any time."

Well, yes. I am also free to claim at any time that I am the emperor of the galaxy, and it is just as meaningful. I was really talking about when fair use is actually meaningful, which is only in a courtroom.
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Anonymous Coward, 13 Feb 2015 @ 7:59pm

Re:
It's almost like something can be a derivative work and also fair use.
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antidirt (profile), 13 Feb 2015 @ 9:20pm

Re: Re:
It's almost like something can be a derivative work and also fair use.

Haha. I hear ya. I think fair use applies to all rights in 106. 107 even says so: "or by any other means specified by that section." But I think the difference between transformative fair use and a derivative work is nonetheless real such that the fair use exception doesn't swallow the derivative right rule. Theere's a cert petition before SCOTUS currently in Kienitz v. Sconnie Nation that turns on this distinction. It's not getting as much press as Oracle v. Google, but I think it's more interesting.
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Kenneth Eng, 13 Feb 2015 @ 10:17pm

The Daily Show involves Jon Stewart fighting giant lizards, which is identical to the concept of one of my TV shows, Dragons Vs. Satire. Furthermore, as an Asian-supremacist, I believe Mr. Stewart to be a black woman. I don't know what this means or why it matters, so send me money.[\non-sequitur]
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Anonymous Coward, 13 Feb 2015 @ 10:41pm

Re:
My only gripe is that Last Week is so damn good, it makes it hard to even care about The Daily Show anymore. Being away from CC/Viacom, Oliver unfortunately shows how many punches Stewart has to pull because of sponsors.
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Anonymous Coward, 16 Feb 2015 @ 8:52am

Oliver unfortunately shows how many punches Stewart has to pull

Oliver's staff has more TIME to plan the punches.

The time to test/game the response matters.
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