Time Warp: March 11, 1997 (Fair Use in News Reporting)

Posted by Ken Davidson on Mar 11th, 2011

On this day in 1997, the 9th Circuit U.S. Court of Appeals held that a television station’s unauthorized broadcast of footage from the Rodney King riots was not fair use. In Los Angeles News Service v. KCAL-TV Channel 9, KCAL-TV — a local Los Angeles news station — broadcast footage of the beating of Reginald Denny, who was pulled from his truck and severely beaten by protesters during the 1992 Los Angeles riots. The plaintiff, Los Angeles News Service, had shot the original footage from a helicopter with its own crews. KCAL had sought a license to use the footage, but the plaintiff refused. KCAL then copied the footage, superimposed its own logo on the video and rebroadcast a portion of the footage. KCAL claimed that its rebroadcast of the footage was fair use, and therefore not copyright infringement. The court disagreed. It reviewed the fair use factors set out in 17 U.S.C. § 107 of the Copyright Act:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

In evaluating the first factor, “the purpose and character of the use,” the court acknowledged that KCAL was reporting news, which weighed heavily in the defendant’s favor. However, the fact that both the plaintiff and defendant were in the business of “gathering and selling news” mitigated the weight of KCAL’s fair use defense. The court cited a number of other facts that further tipped the balance towards the plaintiff. KCAL stood to profit from the exploitation of the licensed footage. It used the footage for the same purpose it would have had it paid for the license. Additionally, it did not attribute the footage to the plaintiff or add anything new or transformative to the footage itself — KCAL merely copied the tape and superimposed its logo on the image as if it were its own. The court also noted that KCAL could have licensed alternate footage but chose to use the footage taken by the plaintiff because it was the best version shot from the best vantage point, not because it was the only footage of the event.

The second factor, “the nature of the copyright work,” weighed in favor of KCAL because the work was largely factual in nature, and it had already been published before KCAL’s use of it.

Conversely, the court found that the third factor, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” weighed in favor of the plaintiff because KCAL used the most valuable part of the footage. It did not matter that KCAL only used a small portion of the original footage – what mattered is that it used the “heart” of the tape.

The fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” also weighed against a finding of fair use. The court said that KCAL’s use of the footage without a license would destroy the plaintiff’s market.

Therefore, the court reversed the lower court’s grant of summary judgment.

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