By Matthew B. Harrison
SPRINGFIELD, Mass. –– When choosing to use non-original materials as a portion of programming, it is important to make sure that such usage falls squarely within the accepted affirmative defense of fair use.
A New Jersey federal appeals court recently reinstated a copyright and defamation lawsuit against New Jersey talk radio station, New Jersey 101.5 (WKXW-FM) and its former PM drive team “Carton & Rossi.” Craig Carton currently co-hosts the WFAN, New York morning drive show “Boomer & Carton.” Ray Rossi hosts an evening show on New Jersey 101.5.
The case was simple. New Jersey Monthly (NJM) hired a photographer to take a photo of Carton & Rossi to accompany an article to be published. An unknown employee of WKXW-FM then scanned in the image from NJM and posted it to the WKXW-FM website, among others. The image, as scanned and posted, cut off reference to NJM’s story title, and eliminated the gutter credit identifying the photographer. The station invited visitors to alter the image and submit resulting versions. In all, the station posted 26 of these submissions. At no time did the station or the hosts ask the photographer for permission, and as a result –– the photographer sued.
How could a radio station be liable for using a photo of their talent? They don’t own the copyright to do so. Here, the magazine didn’t own the copyright either. Their original contract stated that the photographer retains the copyright.
The appropriate language of the Copyright Statutes contain a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship and research. The court must consider the following four factors when determining whether or not a particular use is fair:
1. The purpose and character of the use, including whether such use is of commercial nature or is for non-profit 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;
4. The effect of the use upon the potential market for, or value of, the copyrighted work.
The station argued that their usage of the image was “news reporting” –– a term which appears in the Copyright Act’s non-exhaustive list of potential purposes of fair use. The court disagreed. News organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.
In order for a work to be determined fair use as news reporting, the news outlet must create a new work that, in part, comments on the original work and uses such pieces of the original in the process.
If the radio station is the only outlet breaking this news, and no similar broader news coverage or editorial commentary existed, such as this case, it severely undercuts the argument that such news reporting gives any new meaning to the original image. In such a scenario, the court determined that it seemed more likely that the station did not want to go to the trouble of creating its own eye-catching photo but simply appropriated the image for the same purpose.
Lastly, the court determined that most commercial usage couldn’t be considered fair usage. The station never contested that its usage was commercial, and therefore the court found it so, thereby negating their fair usage assertion.
While the posting of the 26 altered versions of the original image may fall within the court’s view of news reporting –– as it would be adding new meaning to the original image, both literally and figuratively –– the court concerned itself with the initial posting which did not fall within such an affirmative defense.
Additionally, the radio station argued that their usage was news reporting, but never argued that such a usage was non-commercial in nature. Considering that radio stations are inherently commercial enterprises, effort needs to be spent on the assertion that any particular usage when used as content, whether deemed to be infringing or not, is not the sole contributing factor into whether or not a station is commercially viable. Obviously, quality content –– as a whole –– dictates marketability, but the argument needs to be made that no particular piece of content is necessary to commercial marketability.
Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at email@example.com.