When the New York Times reported yesterday that a representative for Feidin Santana, the man who filmed the Walter L. Scott shooting, is requesting that media companies stop airing his client’s video unless they pay a fee, everyone was a little shocked, including Santana.
The convention has been to let media companies, particularly television channels, use newsworthy footage without paying a fee because it’s in the public interest to disseminate the images. But the legal experts the Times spoke to suggest that there is a shelf life for the “fair use” argument that makes this practice possible:
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.
“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 …
At first the notion of time limits on fair use in news may seem excessive, but the arguments in favor of this approach are rather attractive. After the item ceases to be newsy, why must we be forced to endure the cable news cycle’s endless replaying of shocking video? Anyone who lived through 9/11 surely knows how detrimental the impact of this practice can be, numbing the audience to the real story and, according to some studies, creating “clinically diagnosable stress responses in some people who did not even live near the attacks — let alone the millions of people who did.”
News stations benefit financially from videos like Santana’s, so why shouldn’t the people who shot them?
One of the notable aspects of Santana’s story is that he admitted he feared retribution from the police for possessing the video, and he even considered deleting it. We should do everything possible to discourage that fear, but will money help? Yes, I think it probably will.
There is a dark side to this practice, as anyone who has watched the Hollywood thriller Nightcrawler (2014) knows. This turn toward profit may encourage people to alter or influence crime scenes or footage in order to capture more dramatic footage that could garner more views, which means money. In the movie, Jake Gyllenhaal’s character listens to police scanners and gets there before the cops do. Working with an assistant, he stages the scenes and sells his footage to television networks. This would be the worst-case scenario.
There isn’t a clear solution, but this new frontier for copyright does empower image makers — no matter how amateur — to take back control of their creations. This may have unintended consequences like bringing into question the tendency for publications to shame people by using their own images. Last year “Auschwitz Selfie Girl” was ridiculed for her smiling photo, which people perceived as her making light of the concentration camp. We later learned that her smile was because she was remembering her father, who taught her about the Holocaust and wasn’t able to visit Auschwitz with her before he died. This example should force media outlets to think twice before propagating what might be a falsehood about an image.
I should point out that not everyone agrees with the Times and their legal assessment. Forbes spoke to experts who have differing opinions:
“The Times has gotten its wires crossed here,” said Christopher Sprigman, a professor at NYU Law who teaches copyright. “The video is newsworthy. The video was newsworthy the day it was shot, and it continues to be newsworthy. That’s why TV stations want to use it. This is a paradigm case for fair use.”
James Grimmelmann, a professor at University of Maryland Law School who teaches classes on intellectual property, also criticized Haber’s statement. “The distinction between ‘newsworthy’ and ‘commercial’ is like the distinction between ‘red’ and ‘round.’ Of course news agencies make money reporting the news; that’s what we pay them for.”
In the end, anything that makes people — and media companies — more conscious of the ways they use images (even if it takes making them pay) would benefit all of us.
Interesting quandary. I agree that if the news stations are making money off of endlessly replaying the video, some of that should trickle down to the guy who made it. I see the “Nightcrawler” concerns, but the media has paid for other types of imagery — such as photography, newsworthy and otherwise — for a very long time. If they are paying for pictures, it would only make sense that they pay for video, too. (Or better yet, it might make more sense for all media to operate on a non-profit model so that content becomes about what’s newsworthy, not about whatever lurid video pulling in the ad bucks.)
I’m not for relying on the nonprofit model, like PBS, which still has biases. In a nonprofit model the concern is donors and rich foundations influence coverage (which they do). I think we need all models to work, because each has its strengths and weaknesses.
I wonder if the issue here is that he’s an amateur. If he was a pro, would anyone mind that he was paid?
Agreed. Non-profits aren’t perfect. (But don’t underestimate the power of deep-pocketed advertisers.) But paying for images by amateurs isn’t new. The wrinkle here is the internet. It used to be that if someone had some hot image, they’d go to a newspaper to sell it. But now they upload it to the internet, and then it gets picked up by everyone. So the question then becomes, can you charge for something retroactively after you put it online? I don’t know. I don’t think that has been figured out yet. But certainly, on this sorts of footage, I imagine you can really only sell it once — because once it’s out there, people can ‘quote’ it under the principals of fair use.
I agree with Hrag’s comment. But it’s important to note where the “news” gets its money, and that is from sponsors, aka, ADVERTISING.
I suppose that if the person who took the images went to a news organization and demanded that they pay first (as the character in Nightcrawler did), I think the companies would comply, for some agreed upon amount. Each situation can depend on how shrewd (or mercenary) the videographer is.
True, the cases where i think of non-professionals getting paid for their work, they’ve approached a news organization with the distinct idea that they would get sell their footage or image for an exclusive. This has been common in the world of news photography and video for decades. YouTube has shifted things though, with news organizations simply pulling the video from the web.
The producer’s job is to get the footage for as inexpensive a price as possible. As a independent documentary filmmaker, i was approached by a major “lefty” cable channel for footage of an environmental disaster. They were quite annoyed that I didn’t give it to them for free. They then stopped the negotiation asking me why they should pay me when they could get it from a “citizen’s group” for free. They ended up using my footage anyway and airing it nationally without my permission. When I called the producer, they quickly paid me – literally the next day. I’m not a person who can afford to bring a law suit. Producers who might even be a step above interns are gleaning from where they can and getting away with what they can on their limited budgets etc. My interactions with PBS have always been with people who offered the proper price for the same sorts of footage. Just my experience. For my work, I educate citizens about the going rate for broadcast footage and I always license from them to use any of their footage for my work. Some citizens refuse payment, some don’t. Using the Hollywood movie “Nightcrawler” as an example in this story seems grossly naive. Especially considering the issues with police murder and race – this comparison is an insult to the citizens who are working on documenting real harms in local communities with proliferated mobile devices. You should actually talk to some real producers next time as well. Broadcast news is on a tighter schedule, but after the initial push – citizens and citizen journalists should have the right to compensation. IMHO
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