Guy Who Took Walter Scott Shooting Video Now Demanding To Be Paid; Everyone Gets Confused About Fair Use

from the let's-take-this-slowly... dept

Fri, Apr 17th 2015 11:44am — Mike Masnick

As you probably heard, last week there was a big story involving ~~North~~ South Carolina police officer Michael Slager being charged with murder for the shooting death of Walter Scott. Slager had told a story about how Scott had taken his taser. But, a few days later, a bystander's video of the incident was released and told a very different story. If you didn't see it, here is the video, which is rather graphic, seeing as someone is shot to death in the video. We didn't cover this story, which surprised some -- since we frequently cover police brutality stories, with a special focus on stories involving cellphone videos being used to dispute the "official line" from police. However, this was one case where the issue had received so much press coverage that we felt we had little to add to the story.

Well... that is until a copyright angle was added to the story. You see, the guy who actually shot the video, Feidin Santana, has apparently hired a publicist who is demanding news stations pay up for showing the video. And yes, news stations are playing the video so often that it's become a Jon Stewart punchline. Sanata had initially been anonymous, and claimed that he was worried about retribution, but since coming forward has apparently decided that he might as well cash in.

The publicist who is apparently going around trying to charge for this (one assumes after being retained by Santana) has some interesting views on how this all works:

“It’s been allowed to be used for free for over a week now,” Max Markson, CEO of the Sydney-based Markson Sparks group, told the Daily News.

“Now it’s going to be licensed and now you have to pay for it.”

But there's a big problem with this plan, and that is known as "fair use." News reporting is one of the fundamental parts of fair use. Unfortunately, the reporter from the NY Times, Frances Robles, seems to have very little knowledge about fair use and relied on a ridiculously biased expert to argue otherwise. She spoke with Frederic Haber of the Copyright Clearance Center, an organization that goes around trying to license everything and is fundamentally against fair use. And yet, Robles insisted that "copyright experts agree" that fair use somehow no longer applies:

Copyright experts agreed that although news agencies are allowed to use even copyrighted material under what is called “fair use” clauses in the law that time period has passed.

Many actual copyright experts challenged Robles about this issue on Twitter, and she insists she spoke to two others besides Haber and they all agreed, though when questioned, she refused to name who those copyright experts were. And that's a problem, because all three of those copyright experts -- assuming Robles actually found three -- are wrong. There is no "time limit" element to fair use. At best someone might try to argue that after a certain period of time the piece was no longer newsworthy and thus fair use no longer applied, but that seems like a huge stretch.

There is no fair use in Australia, so perhaps that's why Markson is so confused. Take, for example, the nonsensical statement he gave Buzzfeed:

“Fair usage for video exists and networks can still use it for a certain amount of time,” Markson further explained, “like with footage from the Olympics, but the fair usage fee is for people who want to use it again. And in the lead-up to the trial we expect there will be more requests for licensing.”

This makes no sense. There is no such thing as a "fair usage fee." Markson doesn't seem to have any idea how fair use works, and it's unfortunate that the NY Times report that many people are basing their own reporting on isn't any better.

There is plenty of case law that I'm sure any real "copyright expert" would have passed along to Robles had she asked them. Hell, just last year there was a good fair use ruling saying that Bloomberg was allowed to distribute a recording of Swatch's investor calls. The idea that time does away with fair use doesn't make much sense. There's a 1968 case in which Time Life sued Random House and others claiming that using stills from the famed Zapruder film of President Kennedy's assassination was infringing, but the court found it to be fair use, despite it happening years after the film was made (rather than weeks in the case of the Walter Scott video). Then there's the case involving video footage of the beating of Reginald Denny, in which the videographers sued CBS over their use and distribution of the footage (including that it was briefly broadcast on Court TV). Here again, courts found the use to be fair use noting:

We conclude that each factor, particularly the nature of the copyrighted work, weighs in favor of fair use except the substantiality of the use, which we treat as neutral. Accordingly, we agree with the district court that Court TV's use was protected, and we affirm the grant of summary judgment in its favor.

So it seems rather difficult to see how fair use magically disappeared, no matter what Frederic Haber or the mysterious other two "copyright experts" told Robles.

“At some point it’s not newsworthy anymore and you are using it for commercial benefit,” said Frederic Haber, a vice president and general counsel of the Copyright Clearance Center, a collective licensing organization that works on behalf of copyright holders such as The New York Times. The issue could change once the video is played in court during a trial, he said.

Robles later also seems more confused about how copyright works in suggesting that because Walter Scott's family gave the NY Times the video, it wouldn't be subject to these demands for payment:

The Times has used the video with the family’s permission and not received a cease and desist letter.

That sounds good but is meaningless. The Scott family doesn't have the copyright on the video. Santana does. They have no right to license it and the NY Times is clearly relying on fair use in its presentation as well.

Unfortunately, because most reporters don't really want to bother to understand the issue, many took the NY Times report and ran with it, insisting that, yes, media outlets now have to pay to continue using the video. Even the Poynter Institute, which should know better, ran with a headline saying that the "media must pay" to continue using the video. The article itself at least discusses the fair use issue, but the headline seems to ignore that.

I'm guessing that many big news organizations will just pay up, because it's cheaper than fighting, but they have every right to fight this attempt to undermine fair use. The video is newsworthy and its use in reporting is the kind of quintessential example of fair use that is often used to show how fair use works.

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Filed Under: copyright, fair use, feidin santana, max markson, michael slager, news coverage, newsworthy, police, shooting, walter scott
Companies: markson sparks

44 Comments

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Anonymous Coward, 17 Apr 2015 @ 11:59am

Congratulations Copyright Cartel. Your insistence on owning and controlling everything has successfully created a weapon for the common people to abuse. This is your fault and it will come back to haunt you.
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Anonymous Coward, 17 Apr 2015 @ 12:06pm

I'm guessing that many big news organizations will just pay up, because it's cheaper than fighting, but they have every right to fight this attempt to undermine fair use.
And I'm guessing that many big news organization's lawyers are going to tell this seppo to go pound sand.
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DannyB (profile), 17 Apr 2015 @ 12:16pm

If It's NEWS then it's fair use
That is one of the very definitions of fair use.
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David, 17 Apr 2015 @ 12:21pm

I'm kindof on this guys side.
He's got a unique video, that news organization have been paying a lot. I think they ought to pay him something. Had it been their own reporter that shot this, he would have at least been paid something for it.
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Anonymous Coward, 17 Apr 2015 @ 12:24pm

"North Carolina"
It actually happened in North Charleston, which is in South Carolina. (From the first paragraph)
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Anonymous Coward, 17 Apr 2015 @ 12:28pm

Re: I'm kindof on this guys side.
None of that has anything to do with fair use...
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That One Guy (profile), 17 Apr 2015 @ 12:34pm

Re: I'm kindof on this guys side.
Just because one person, or many people, are making money, it doesn't automatically mean that someone else has to get paid.

And while it may suck for him, I personally hope the various news agencies tell him to get bent when his lawyer comes demanding cash, as Fair Use already gets attacked enough in other arenas, it doesn't need weakened in a case this obvious by them folding and acting like Fair Use doesn't include newsworthy items.
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jupiterkansas (profile), 17 Apr 2015 @ 12:35pm

Re: I'm kindof on this guys side.
The problem is that if everything newsworthy must be paid for, then things which aren't paid for are not reported, or it becomes the exclusive property of the highest bidder, who might simply suppress the footage if they feel it harms them in any way. This makes it an effective form of censorship.

Copyright is supposed benefit the general public, not the copyright holder. Allowing fair use for news commentary benefits the general public, not to mention that copyright law was in no way an incentive to create this particular video.
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Mike Masnick (profile), 17 Apr 2015 @ 12:40pm

Re: I'm kindof on this guys side.
Yeah, I mean, if it weren't for copyright, who would have incentive to keep filming police brutality, right?
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Anonymous Coward, 17 Apr 2015 @ 12:42pm

So many feel the need to cash in and fair enough if you just invented some wonderful thing or whatever. Trying to profit off of the brutal murder you happened to catch with your phones camera? pure greed.
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radix (profile), 17 Apr 2015 @ 12:49pm

I sort of wonder if it should be copyrighted at all
Fair use completely aside here...

According to the letter of the law, it is almost certainly covered, but let's take a step back here.

Copyright does not cover ideas or facts, only the artistic contributions of the author/photographer/etc for the express purpose of encouraging more art.

But one has to ask, in this scenario, what artistic choices did Santana contribute? This was a spontaneous event. He didn't set up the camera angles, the lighting, or direct the participants. He was just in the right place at the wrong time.

Why does any spontaneous recording of a factual event, with no contribution from the recorder (other than the ability to push 'start') qualify for a purely economic right?

[Hell, if you want to get really anal about it, NC is a one-party consent state. If he didn't have consent to record people in public, maybe the recording itself is in a gray area. I think we could all agree that it shouldn't be, but if he wants to go legal with this, that opens up more potential liabilities than just for news stations.]

I don't see this as the same as a photographer getting just the right angle, or waiting for just the right framing or lighting conditions for their subject. If he had even done more narrating of the events than "Oh shit, oh shit" I'd be more sympathetic to his contributions.

Everything you see on that video is a practical necessity of making any recording of that factual event.
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Anonymous Coward, 17 Apr 2015 @ 12:53pm

Public Recordings
My opinion would be that any recording in public that is for a surveillance/news/legal purpose should be considered public domain regardless of the entity doing the recording. Citizen, Business, or Government.
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Anonymous Coward, 17 Apr 2015 @ 1:03pm

Re: Re: I'm kindof on this guys side.
you mean like when the cops buy the video?
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Anonymous Coward, 17 Apr 2015 @ 1:35pm

Re: Public Recordings
What if it is for a private diary, and accidentally captures a news worthy event, and is then published?
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DannyB (profile), 17 Apr 2015 @ 1:48pm

Re: I'm kindof on this guys side.
News organizations might pay to get it sooner, and possibly exclusively for some short period of time.

But any other news organization could then include it in their broadcast as fair use. They just wouldn't have the scoop -- which it seems, is what news organizations will pay you for.
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DannyB (profile), 17 Apr 2015 @ 1:51pm

Re: Re: I'm kindof on this guys side.
But copyright enables new, innovative business models.

Just imagine . . .

Police departments everywhere could pay a camera wielding citizen $500 to get that evidence of wrongdoing before anyone can use it against the police officer and the department. Citizens make money! It's commerce!

Isn't it in the public and taxpayer best interest to maintain the respect that public holds for the police?

(ewwww! I almost gaged typing that. Now I need a shower.)
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That One Other Not So Random Guy, 17 Apr 2015 @ 2:03pm

Re: I'm kindof on this guys side.
It isn't enough being satisfied in knowing you corrected an injustice in the world that just so happened to end with an innocent man being shot in the back. No no no some asshat said to the guy he "should get paid." Why? Isn't it our civic duty? Why does someone "need to be paid" for doing the right thing?
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David, 17 Apr 2015 @ 2:13pm

Re: Re: Re: I'm kindof on this guys side.
There's a difference between buying and licensing, though. I don't mind the cops licensing it, but not buying it.

JFK's assassination was newsworthy, and Zapruder made some money off his video despite a much more open concept of "fair use" at the time.

Frankly, that the news organizations that would rape your daughter for re-broadcasting their footage (fair use, posh!) feel outright astonished they can't use someone elses for free.
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jupiterkansas (profile), 17 Apr 2015 @ 2:16pm

Re: Re: Public Recordings
If it's published, then it's not a private diary, and therefore open to fair use. Publishing makes everything open to fair use - that's the nature of publishing. It doesn't matter what it is.
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Rikuo, 17 Apr 2015 @ 2:30pm

Re: I'm kindof on this guys side.
Where in copyright law does it mention that for a copyright holder wanna-be, his work has to be "unique"?
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That One Other Not So Random Guy, 17 Apr 2015 @ 2:31pm

Re: Re: Public Recordings
Ask Natalie Wood.
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Rikuo, 17 Apr 2015 @ 2:31pm

Re: Re: I'm kindof on this guys side.
...and more to the point, how do you define "unique"? There have been plenty of videos of people shooting other people, in the back and front. Not of this specific officer and this specific victim sure, but that's just one detail.
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John Fenderson (profile), 17 Apr 2015 @ 2:32pm

Re: Re: Re: Public Recordings
Yep. Or, as Negativland once put it so well (albeit for acoustic works):

Perceptually and philosophically, it is an uncomfortable wrenching of common sense to deny that once something hits the airwaves, it is literally in the public domain. The fact that the owners of culture and its material distribution are able to claim this isn’t true belies their
total immersion in a reality-on-paper.
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James Burkhardt (profile), 17 Apr 2015 @ 3:28pm

Re: Re: Re: Re: I'm kindof on this guys side.
YOu see there is a difference in how Zapruder went about distributing his content. Zapruder gave the film to the FBI, after getting an oral (i assume, i doubt the assurance was in wring) contract that they would only use it for the investigation. Then He sold the remaining copy. He could do that because the footage was unique and there was demand for the actual physical product (the footage), copyright isn't what made that footage valuable initially.

On the other hand, Feidin Santana distributed the footage without selling it. Now he is, after the fact, demanding recompense for his own distribution.
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AnotherAnon, 17 Apr 2015 @ 4:07pm

Creative Work?
Feidin Santana turned on a camera to record a public scene. He deserves credit for the public-interest reasons he originally gave to make it public. He did not make an original creative work.

Maybe the corrupt policeman Michael Slager could make such a claim. He set up a scene where he shot an unarmed man in the back running away from him. He then creatively planted false evidence, and invented a false public-relations narrative about administering CPR (which he did not) for the police report.

He created the set, wrote the fictitious script, provided props to make his version of the scene more credible, and was one of the two main actors in the scene. This was creative. Does such creativity deserve a government-granted monopoly on his totally-dishonest but imaginative story?
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Anonymous Coward, 17 Apr 2015 @ 5:10pm

Just because a video is newsworthy doesn't mean that showing it is automatically fair use. For instance, there is this case, involving the airing of the Reginald Denny beating during the 1992 LA riots. In that case, the court found that the TV stations were liable because they had aired the entire 3-minute video without commentary. It is clear from the language of the ruling that a shorter clip may have been acceptable under fair use.

All this to say that the use of a video clip is not fair simply because the content of the video is newsworthy.
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Anonymous Coward, 17 Apr 2015 @ 5:11pm

Re:
Forgot to link the actual case: http://openjurist.org/108/f3d/1119
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Anonymous Coward, 17 Apr 2015 @ 5:16pm

Re: Public Recordings
What about people who photograph newsworthy events for a living. It seems like, under your system, photojournalism would cease to exist pretty quickly, since nobody would pay them.
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Anonymous Coward, 17 Apr 2015 @ 5:57pm

"This video may be inappropriate for some users."

Instead I use Ageless addon for Firefox.
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Anonymous Coward, 17 Apr 2015 @ 8:04pm

Yet another example of copyright corrupting a individual. Feidin Santana started out showing his video so the family of the murder victim could have some closure. Next thing you know copyright trolls are coming out of the woodworks and entice Mr. Santana with promises of riches beyond his wildest dreams.

I find it disheartening to watch Mr. Santana go from a good hearted citizen trying to do the right thing, to a money grabbing copyright troll trying to profit off Walter Scott's murder.
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Anonymous Coward, 18 Apr 2015 @ 12:14am

Re: Re: Re: I'm kindof on this guys side.
wouldn't they just seize it as evidence, they already don't follow the laws otherwise there would be no need to buy evidence of them breaking the law.

Why would you expect them to follow this law when they could just break more laws and beat up/arrest/seize the evidence of their previous crimes caught on film
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Rikuo, 18 Apr 2015 @ 2:11am

Re:
Read what you wrote "aired the video without commentary". I'm pretty sure that the news stations covering this shooting had their news anchors reporting and talking about the video.
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Mike Masnick (profile), 18 Apr 2015 @ 5:32am

Re:
Just because a video is newsworthy doesn't mean that showing it is automatically fair use. For instance, there is this case, involving the airing of the Reginald Denny beating during the 1992 LA riots. In that case, the court found that the TV stations were liable because they had aired the entire 3-minute video without commentary. It is clear from the language of the ruling that a shorter clip may have been acceptable under fair use.

We actually discuss a *later* ruling concerning the Reginald Denny video (and how Court TV used it) in the article above, noting that the appeals court found it to be fair use.
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zero, 18 Apr 2015 @ 7:23am

does he have a copyright
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Anonymous Coward, 18 Apr 2015 @ 9:53am

Re: Re:
Hi, thanks, for responding to my comment.

One thing I would point out is that in the CourtTV case the 9th Circuit actually points out that CourtTV was not using the footage to report the news, they were using it to promote their coverage of the trail of the perpetrators of the beating. Since this promotional purpose is different from the original purpose of the video, CourtTV's use was considered "transformative" in the language of fair use, and newsworthiness wasn't one of the factors the court considered.

To be clear, I am not saying that broadcasting the video of the Walter Scott shooting is not fair use. I am just cautioning against a blanket rule that says that if something is newsworthy, it can be aired without consequence.
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Anonymous Coward, 18 Apr 2015 @ 10:27am

Re: Re:
That is also the true of the case that I cited, and the court addresses it directly in it's ruling:

"Although KCAL apparently ran its own voice-over, it does not appear to have added anything new or transformative to what made the LANS work valuable--a clear, visual recording of the beating itself."

I think that the Walter Scott case is different, since, unlike the KCAL case (which concerned a video taken by a couple that specialized in documenting newsworthy events from a helicopter, in order to sell the footage later), Mr. Santana is not a professional photo/video journalist, and so it is less clear what, in copyright terms, the "purpose" of the video was.
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nasch (profile), 18 Apr 2015 @ 10:45am

Re: I'm kindof on this guys side.
I think they ought to pay him something.

That's a perfectly fair position, but it's different from stating that the law requires them to pay him, which is what this is about.
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nasch (profile), 18 Apr 2015 @ 10:48am

Re: Re: Public Recordings
It seems like, under your system, photojournalism would cease to exist pretty quickly, since nobody would pay them.

Not really - photojournalists can either be on staff, or they can offer to sell their unpublished photos to a news organization. If the photographer hasn't published them anywhere, the only place the news org can get them is from the photographer. Copyright isn't even necessary to make that kind of deal work.
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Anonymous Coward, 18 Apr 2015 @ 11:23am

Re: Re: Re: Public Recordings
I don't think that either of those solutions would actually fix the problem.

If you rely on the news agencies to have a photojournalist on staff, then you create a massive free rider problem. (since every other news agency can use the photo that the news agency paid to have a photographer take).

Having a freelance photo journalist sell their unpublished photo to a news agency creates a different, but related, problem. It increases the price that the photo journalist has to charge for the photo (since they can only sell it once) while simultaneously decreasing the value of the photo to the news agency that buys it (since, as soon as they publish it, all the other agencies that didn't pay for the photo can use it under fair use).
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nasch (profile), 18 Apr 2015 @ 2:12pm

Re: Re: Re: Re: Public Recordings
I don't think that either of those solutions would actually fix the problem.

Is there actually a problem that needs to be fixed?
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Anonymous Coward, 18 Apr 2015 @ 2:18pm

Re: Re: Re: Re: Re: Public Recordings
The problem that I initially pointed to was that photo/video journalists would not get paid, which would lead to less photography of newsworthy events.
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nasch (profile), 18 Apr 2015 @ 2:45pm

Re: Re: Re: Re: Re: Re: Public Recordings
The problem that I initially pointed to was that photo/video journalists would not get paid, which would lead to less photography of newsworthy events.

And is that something that is happening? Or are you speculating about what might happen if fair use were strengthened?
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Anonymous Coward, 18 Apr 2015 @ 3:09pm

Re: Re: Re: Re: Re: Re: Re: Public Recordings
The comment I initially replied to was:

"My opinion would be that any recording in public that is for a surveillance/news/legal purpose should be considered public domain regardless of the entity doing the recording. Citizen, Business, or Government."

I was arguing that that rule would have negative consequences for photo journalists. I don't have a problem with strengthening fair use, I just think that this particular change would have negative consequences.
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Anonymous Coward, 18 Apr 2015 @ 9:02pm

News organizations are part of the content industry. I wouldn't put it past them to intentionally muddle any copyright coverage to insure that the public never figures out how copyright law actually works and use that knowledge against them or their parent company in the future. Most of them haven't been a any good at informing the public of anything beyond celeb gossip and political propaganda for awhile now.
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