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.