From the Summer 2004 issue of The News Media & The Law, page 5.
The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.
The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.
Q: Television news stations in my state have placed their old footage into a public archive maintained by the state government. Do copyright laws prevent me from including this footage in my own documentary or news program?
A: Television news footage is being collected and preserved in a number of archives around the country. These collections are important resources for historians and students as well as journalists, film-makers and authors. But just because the footage is easily accessible does not mean that it may be freely used.
The American Tel-evision and Radio Archives Act established a news archive at the Library of Congress “to preserve a permanent record of the television and radio programs . . . and to provide access to such programs . . . without encouraging or causing copyright infringement.”
Anyone accessing footage in an archive should assume that it is protected by copyright law and, generally, some permission will be necessary before any use can be made of any material. It may be that news stations or other owners/authors have transferred ownership of the copyrights in their footage to an archive; in such situations, a user may have to pay a modest fee to the archive. In other instances, the archive may own only the physical copies of the footage, and the copyright is retained by the news station. This would necessitate users obtaining a license from the news station.
Depending on the nature of the intended use, it may be that other legal issues will be raised and that additional permissions will be required. For example, persons depicted in the footage may have rights of publicity and/or privacy requiring the user to obtain their written consent.
Users should inquire at an archive about procedure and payment for use, and should anticipate that the rules will vary from archive to archive. Some archives prominently post the rules for use of material on their Web site.
Some use of footage may be allowed — for one reason or another — without a license. Generally, “personal” and “non-commercial” use is allowable, but users should be careful they understand these terms. It is possible that some footage in an archive may be in the public domain. It is also possible that certain use, depending on factors including the nature of the use, may be considered “fair use” as that term is defined under copyright law.
But instances of “fair use” will probably be the exception to the general rule: Authorization is required.
Janet Fries is counsel in the Intellectual Property Practice Group of Drinker Biddle & Reath in Washington, D.C.
A: This is a terrific question because it highlights an important trend: the use of both copyright and contract law to govern the distribution of materials.
Copyright exists from the moment a work is created. So the stations that created the now-archived footage held copyright from the outset. The bundle of rights that is included in the term “copyright” includes the exclusive right to publish and display the material. When the stations gave copies of the tapes to the archive, the stations either assigned the copyright in the footage to the archive (that is, gave up all of their rights and transferred them to the archive) or licensed the footage to the archive (that is, shared some of their rights with the archive). This presumes, of course, that the station’s copyright hasn’t expired, which could be the case for only the oldest tapes. Determining the expiration of copyright is quite technical and likely would require advice of an attorney.
If the stations assigned the copyright, the archive can determine how you can use the tapes. If the archive has this full complement of rights and it wishes to do so, it could provide you with rights to use the archived footage in your own broadcasts. If, however, the stations only gave the archives a license to use the tapes, the question of whether you can use the footage depends on two factors: (1) whether the stations provided the archive with rights to let the public publish the footage, and (2) whether the archive will, in fact, license the public to broadcast the footage.
Your archive is likely to have similar terms. To obtain rights to publish the archived materials, you would need to obtain a license from the network or station that owns the copyright in them.
There is an exception to the copyright owner’s exclusive rights: “fair use.” The fair use concept gives the public a limited right to copy, display and use copyrighted works. To determine whether a use is “fair,” courts look to four factors:
1. The purpose and character of the infringing use. That is, is it commercial or noncommercial? If the use is noncommercial, such as a teacher photocopying a chapter from a textbook to give to his class, it is likely to be a fair use. If you’re profiting from someone else’s copyrighted work, however, it’s much less likely to be a fair use.
2. The nature of the copyrighted work. Works that are more creative, such as works of art, generally receive more protection than works that are more factual, such as compilations and databases. Television broadcasts tend to fall in the middle of the spectrum.
3. The amount of the work used. If you use just a bit of the footage, it’s more likely to be seen as a fair use than if you use it all, or a significant part of it.
4. The effect on the copyright holder’s potential market. If you use the footage, will the copyright holder’s ability to make money from it be harmed? This is the most important factor.
It is often risky to rely on fair use. It’s usually a good idea to get the advice of a lawyer on the specific type of use you’re planning before infringing a copyright in hopes that “fair use” will provide a defense. The factors, as you can tell, are very subjective and context-based.
Again, the safest course is to check the archive’s rules and, if you need to, seek permission from the copyright holder.
Kurt Wimmer is a partner at Covington & Burling in Washington, D.C., specializing in media and intellectual property.
Q: I am considering cooperating with a federal agency investigation by disclosing some information I learned through a confidential source. Will I waive my right to assert a reporter’s privilege concerning other information or materials if I do this?
A: The answer depends on the jurisdiction. In federal court, whether a reporter has waived the privilege depends on the law of the Circuit. For example, in the First Circuit, a reporter may disclose some information from a source or about a source without waiving the privilege. However, courts in the Eighth Circuit may find that a partial disclosure of information constitutes a waiver of the privilege. In J.J.C. v. Fridell, the Minnesota District Court found that “voluntary disclosure of information covered by a privilege could constitute, but does not mandate, a waiver of the privilege.” However, the court ultimately determined that “mentioning who is not an informant is not the same as indicating who is the informant.”
Courts in the Third Circuit have suggested that journalists may waive the privilege in two circumstances: where the information has been published or publicly disclosed or in a case where the journalist filed suit to vindicate his or her own rights. However, one Third Circuit court has expressly held that partial disclosure of information does not waive the privilege as to other matters.
Additionally, if a state has a shield statute that protects reporters against compelled disclosure, the terms of the statute will dictate whether there has been a waiver in state courts or in a federal case where the state law regarding privilege is applied. Most statutes provide that the privilege is not waived by partial disclosure, at least not beyond the disclosed information. For more information about waiver, see the Reporters Committee’s “Reporter’s Privilege Compendium” available on our Web site at: www.rcfp.org/privilege.