Is a montage of a montage fair use? SHIRMAN v. WHEC-TV

Is a montage of a montage fair use? SHIRMAN v. WHEC-TV

A copyright is a set of exclusive rights granted to the creator of a new creative work.  When a creator produces a new work of expression, the creator is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original.  If someone other than the owner of the copyright attempts to exercise one of these exclusive rights that can be considered copyright infringement.  A copyright owner can enforce their copyright in the United States by filing a lawsuit in a federal district court.

Copyright law grants the owner of a copyright significant control over a work, however the powers granted by a copyright are not unlimited.  The purpose of copyright law is to promote the progress of society, creators are granted a copyright so that they may benefit from their creations.  Frequently creators are inspired by other creators, therefore copyright law will excuse a certain amount of borrowing from a copyrighted work.  This borrowing is referred to as a fair use.

The 1976 copyright statute defines fair use in section 107 with a preamble enumerating a non-exclusive list of potentially fair uses—criticism, comment, news reporting, teaching, scholarship, or research—followed by four factors courts should considered when determining fair use.  Those factors are: 1) the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount 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.

While news reporting is one of the activities which might be considered a fair use, news agencies are not immune from copyright infringement lawsuits.  If the four fair use factors weight against fair use, a news agency can be found liable for copyright infringement.

A case which deals with fair use in the context of news reporting is Shirman v. WHEC-TV, LLC, 18-CV-6508 (W.D.NY 2019). The plaintiff in this case is Boris Shirman.  Mr Shirman is a photographer who took interviewed and photographed young voters as they prepared to vote in the 2016 presidential election in the United States. The plaintiff compiled the audio recordings of the interviews and corresponding photographs into a video montage organized thematically concerning topics related to the voters’ political involvement.

The defendant is a local television news broadcaster.  Just before the 2016 election the defendant aired a story about first-time voters in the upcoming election.  The defendant’s video included portions of both the audio and video of the plaintiff’s video.  The defendant added voice-over and graphics to the video it created. The plaintiff sued for copyright infringement. The defendant filed a motion to dismiss arguing that their use of the plaintiff’s recording was a fair use.

The district court did not grant the motion for summary judgement.  The court reviewed each of the fair use factors in turn.  For the purpose and character of the work, the court noted that a news report that merely repackages or republishes the original is unlikely to be fair.  The court noted that the defendant profited off the use by not paying a licensing fee.  The second factor, nature of the work, was inconclusive because the plaintiff’s work was factual.  With respect to the third factor, the court found that there was too little information to make a determination, however a significant portion of the defendant’s broadcast consisted of the plaintiff’s work.  The fourth factor, the effect on the potential market for the work, weighed against a finding of fair use because the plaintiff licenses his works and allowing republishing without licensing would destroy the plaintiff’s business model.

The district court did not shut the door completely on the fair use defense.  This was a motion for summary judgment for the defendant which should only be granted if the court finds there are not facts in question.  The district court merely ruled that there were still facts in dispute making it inappropriate to grant the defendant’s motion.

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