Fox’s lawyers say “fair use” does not apply to commercial use

I don't see how is can be considered "commercial" usage. It's political, not commercial. I haven't seen the actual clip, but would it be possible to black out or pixilate the logo?

I like the re-enactment idea. Then they can use their own "logo" like "Pox News" or "Faux News." :)

Dateline of the NYT blog post [thecaucus.blogs.nytimes.com]: October 25, 2007, 4:51 pm.

Latest followup appears to be yesterday's pieces on cnet [news.cnet.com], eff [eff.org] and a few other places as a result of the McCain campaign's letter [eff.org] (pdf) to YouTube and Google this past Monday.

Very interesting stuff, just surprised it took McCain & Co. almost a year to again bring it forward as it's now getting down to crunch time.

Dateline of the NYT blog post: October 25, 2007, 4:51 pm

Thanks for bringing it up because I caught the date and forgot to mention it in the original post, very odd it took a full year.

The EFF is huffing and puffing about DMCA abuse but most often these issues arise because the offending party simply didn't ask permission.

It seems that the simple courtesy of asking most often gets more positive results.

For instance, I've given permission to use several of my images from an online gallery when people ask nicely and have swatted down the rest with DMCA.

Surely Fox News cannot be claiming rights to a political debate item during the run up to an election.

I would have thought that any pro-nouncement by a candidate would have to be public domain anyway.

(I hope I haven't overstepped the mark politically here - in the UK different laws apply to public broadcast during an election campaign)

[edited by: IanTurner at 10:13 pm (utc) on Oct. 15, 2008]

I think the issue here is over who owns the video footage itself, not the content of the debate.

The person or company (FoxNews) making the video obviously doesn't have copyright over the candidates words in the debate, but they do have copyright over their unique video compilation.

they do have copyright over their unique video compilation

How about a compilation complication?

I have no idea how that debate was structured, by whom it was sponsored nor any other details, so this is just fly-by-night conjecture. As far as I know, the video in debates such as these is either fed by the sponsors themselves or by pool cameras. It's very situational and subject to whatever agreements were reached, but might the ownership of the footage actually reside in the sponsor?

Again, just fly-by-night spec.

I think the issue here is over who owns the video footage itself, not the content of the debate.

I agree, I would have thought that any political debate broadcast in the run up to an election would have to be public domain rather than have copyright reside in any one organisation whose owner may then suppress/release the information contained therein for their own political ends.

I would have thought that any political debate broadcast in the run up to an election would have to be public domain

The problem with public domain is that the networks probably want to assert ownership and set a precedent in the unlikely event that a future political debate provides some interesting footage with long-standing value (in the US that would be quips like "There you go again" from the Reagan-Carter debate).

That's a good point, if you don't assert ownership it's hard to license public domain footage.

However, wouldn't it make sense to negotiate usage of debate snippets from the networks before agreeing to appear on their network in the first place?

Seriously, if I were going to agree to appear in someone's news video I might have the forethought to ask for terms of "fair use" clips ahead of the event.

IMO it's a slippery slope for someone like FoxNews to play this game, and to refuse such a request had it been made, because PBS or CSPAN just might say YES!

The problem with public domain is that the networks probably want to assert ownership and set a precedent in the unlikely event that a future political debate provides some interesting footage with long-standing value (in the US that would be quips like "There you go again" from the Reagan-Carter debate).

That's fine however they should have to come to a agreement with all the parties present before they are allowed to do that.

For example you can't tape and distribute copies of a H.S. play without an agreement between the company taping, the copyright owner of the play and the school. This topic concerning McCain is pretty much the same situation.

What I find really humorous is they are biting the hand that feeds them, I'm not so sure serving a DMCA on a high powered politician for such a frivolous matter is in the best interests of the media industry. Having said that maybe it's a good thing. :)

I think the candidates were too busy negotiating the actual terms of the debate and the sponsoring organization (Commission on Debates or whatever) was left to work out the details, or neglect to do so, as they wished.

In theory, the candidates are just guests, so though the commission on debates may have a right to the footage, apparently they didn't negotiate any such thing with the candidates.

I sure bet that's the last time that happens.

The interesting part is what's in the contract (or "release" form) signed by both parties. Since we don't know that, most of the rest is speculation.

FoxNews might have all the rights needed if they have a contract that gives them the right.

Fox is not unique in this. Each of the broadcasters allowed to film the event have exercised the same argument. In reality their BROADCASTS are copyrighted (look and feel at a minimum and a whole slew of other attributes) and control of their copyright is reasonable.

What is not reasonable (and not going political) is how UNEVEN is their (broadcasters) implementation of their rights on YouTube.

Fox News is very specific about their right to restrict usage of their materials, including hyperlinks to their site:

Terms of Usage [foxnews.com]

The reproduction, duplication, distribution (including by way of email, facsimile or other electronic means), publication, modification, copying or transmission of material from this Site is STRICTLY PROHIBITED unless you have obtained the prior written consent of FOX or unless it is expressly permitted by this Site. The material covered by this prohibition includes, without limitation, any text, graphics, logos, photographs, audio or video material or stills from audiovisual material available on this Site. The use of materials from this Site on any other web site or networked computer environment is similarly prohibited.

Requests for permission to reproduce or distribute materials found on this Site can be made by contacting FOX in writing...

It then goes on about derivative works including their materials - and a commercial including a clip is just that.

Major point: Use of their materials in an ad (a derivative work) could be considered Fox's implicit agreement with a commercial advert. Why wouldn't they have a right to object to that being done if it's been done without their explicit written permission?

And BTW, there's nothing about this that has anything to do with being in the public domain, because none of it is.

[edited by: Marcia at 3:18 am (utc) on Oct. 20, 2008]

By analogy...

If I write a scholarly work (for profit) and quote another work, with attribution, I am within fair use.

Is the Fox bug in the corner not attribution?

Of course, this avoids the question of whether quoting another author's quote of something I had written was a copyright infringement - something like:

I would like to start this treatise by quoting from my good friend Bud Ugly, who wrote in his tome, Essential Complaints (Haphazard Home Books, 2007) "In his seminal work Zen and the Art of Plagiarism (Spheniscus Books, 2006), Willybfriendly penned the memorable line, 'Would you like a piece of cheese with that whine?'," which will serve as the foundation for most of this work.

Who is infringing on who (or is that "whom")?

A political candidate can't use footage of themselves in a political debate that was shown on several channels simultaneously? From a non-lawyer's perspective, that utterly fails the "common-sense test." I'm sure Fox's legal team have their reasons however.

Footage from all networks, including SNL broadcasts can be seen all over - with no problem.

The entirety of debates are being shown on YouTube, including a multi-parter of the recent final one by a private citizen(s) using the MSNBC footage. No problem, no DMCA, no takedown.

The difference, except for expressing their opinion or bias, is that the private individual has no interest or motive for commercial purposes or personal gain. And the private individual isn't spending millions of dollars on TV advertising and/or Adwords and/or banner advertising to promote their cause (winning an election), which is exactly what campaign organizations and candidates have done and are doing.

When you have Adwords running political ads on YouTube right alongside videos, in what way would those ads be for personal gain (winning an election), but the same parties running an ad in the form of a YouTube video not be for personal gain?

Using copyrighted materials without permission, in violation of the copyright-holder's expressly stated Terms of Use, for the purpose of commercial promotion or personal gain, isn't fair use. Not even close.

Added:

Is the Fox bug in the corner not attribution?

That's an additional problem, on top of the copyright issue.

Since technically the video is an advertisement, Fox may or may not appreciate being directly associated (without their permission), with the content of the ad or the concepts it presents, over which they had no editorial control or input.

[edited by: Marcia at 5:56 am (utc) on Oct. 20, 2008]

The entirety of debates are being shown on YouTube, including a multi-parter of the recent final one by a private citizen(s) using the MSNBC footage. No problem, no DMCA, no takedown.

In part right, but so wrong on so many levels. The FOOTAGE used in all these "no problem" vids is EVERYONE OF THEM IS WRONG, ie, taken from a copyrighted source with full rights and power to control the content. Can't get around that. No permission? Should be taken down.

Where I have a "duh" factor is in which vids are marked for take down, ie, politics and we don't do that here at WW. Right?

tangor, this isn't about politics or even near who's right or wrong or taking sides politically, it is NOT political.

It's about DMCA and a very interesting issue, whether or not political advertising is commercial with regard to copyright law.

The process for take-down is for the infringed party to file a DMCA - which obviously the networks choose not to do, because it's decidedly for their benefit not to.

which obviously the networks choose not to do, because it's decidedly for their benefit not to.

ummm, they DID do DMCA, FoxNews nuked McCains ads.

>>ummm, they DID do DMCA, FoxNews nuked McCains ads.

Exactly. Fox News nuked the ads using their content as part of those ads, without their permission or editorial appoval.

But the other networks (CNN, CBS, MSNBC, etc.) haven't stopped theirs from running, the ones that aren't part of ads. And there are plenty of Fox videos still on Youtube that aren't part of ads, and they're letting them run. Ads aren't fair use, they aren't non-commercial.

Using Fox's content within the context of the ads implies that Fox approves the content of the ad and its message. That's the problem. It's the context, the nature of how they're being used as a derivative work. And it's within their legal right to object - or not object. It's their choice, and their responsibility as a media company both legally and editorially.

It may be a slippery slope, but Fox doesn't, and can't, have the same kind of editorial latitude that DailyKos or its counterparts have.

Added:

BTW, CBS also forced YouTube to take down an ad (from the same source), saying essentially that they didn't want their properties/personnel used in political advertising. The story is on Fox's website, but I'd rather not link to it and chance stirring up anything political.

CBS called the implication (of their endorsement of the ad) misleading and objected strongly - and I'd suspect Fox went by the same reasoning about being associated with and held responsible for ads that aren't theirs.

The bottom line is that major mainstream media companies don't want it to be implied that they're endorsing third party partisan political ads.

Did Fox Overstep Fair Use or did McCain?

The short answer: McCain did. Three times - with Fox and CBS. Because using copyrighted materials without permission in commercial campaign ads doesn't fall under the umbrella of fair use.

[edited by: Marcia at 10:01 am (utc) on Oct. 20, 2008]

Living outside the US I've not seen the content the presidential candidate reused -allegedly- without permission. But since it's images from a "debate" he himself participated in, he himself would own copyright of the speech he gave (or the person who prepared it for him). The "debates" I've seen are well prepared speeches, and even then it would make it a work of art in itself to do what they do there.

IE: the news network materials themselves are derivative works of those speeches. Now a lot between the one giving the speech and the ones recording it is ruled by paperwork they might or might not have signed up front.

Since we've not seen what agreement they had in place, it's hard to tell what each party can do with the material.

Making an unauthorized derivative of an (authorized) derivative where you own the original, sounds in layman terms much less grave than what's been claimed by the news agencies.

Maybe it's more like grabbing an old copy of your own site from archive.org ...

now if the candidate were smart: make it look like satire: no permission needed.

I've just watched the two versions of the debate clip and here's the bottom line. The excerpt of the one-liner is still on YouTube, unedited, as it was originally taped by Fox.

However, the commercial ad used the excerpt of the one liner but edited it to insert still shots into it, plus an introduction before and campaign pitch after. But the inserted still shots LOOKED like they were part of the Fox News video, which they were not.

It's the edited for commercial use version that was objected to, which incidentally is still at CBS as part of a news story, and apparently Fox is fine with that, because in that context it is fair use.