Can airing a copyrighted news clip for critiquing constitute “fair use”?
Q: I am one of the producers of a Cable Access TV program and I want to know if we can show a news clip from a local broadcast station on our program in order to critique it. Is this a copyright violation or our first amendment right to point out their unfair reporting? Basically, will we get sued for doing this? And if so, will their case have any merit?
A: Your question is primarily governed by copyright law. Although the Courts have indicated that the First Amendment may have some impact on the application of the Copyright Act to particular conduct, in general the First Amendment does not provide a defense to copyright infringement.The issue presented by your question is whether the use of the news clip would constitute “fair use” under the Copyright Act. Section 107 of the Act (17 U.S.C. § 107) provides as follows:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(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and(4) the effect of the use upon the potential market for or value of the copyrighted work.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.As section 107 indicates, reproduction for the purposes of criticism, comment, news reporting, etc., is often protected as fair use.
However, the ultimate determination of whether a use is fair depends on an analysis of the four factors outline above, and is very specific to the particular case.