So I know we’re all probably sick of fair use stuff, but I found an interesting article about NPR and the campaign to overturn Maine’s same-sex marriage law. The Yes on One/Stand for Marriage Maine campaign (which is against same sex marriage) uses 20 seconds from a 2004 NPR story entitled “Massachusetts Schools Grapple with Including Gay and Lesbian Relationships in Sex Education” for their TV spot. NPR has issued cease and desist orders to the organization, as well as to Youtube and other websites that are streaming the video. The article says that Youtube has complied, but I’ve embedded the ad spot form Youtube, so apparently not…
They haven’t yet approached TV stations to remove the ad, but they’re running out of time as the elections occur in two weeks. NPR doesn’t want to be labeled as supporting or opposing this issue, especially as it is an incredibly volatile one. A representative for the political campaign is claiming that this is covered under fair use.
This story bring up an issue that I grappled with when trying to decide if I agreed with the outcome of the case I used for my paper – one of the factors of fair use is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” but this says nothing about the amount and substantiality of the portion used in relation to the new work, which I think is an important factor to regard as well. In this case, the NPR clip takes up 20 seconds of the 30-second ad, composing 2/3s of the entire spot. In my opinion this is clearly not an example of fair use but I guess I was wondering what others think, especially about the amount of the portion used in relation to the original work vs. the amount used in relation to the new work.
Some Rights Reserved
As Fair Use is supposed to be a pressure-valve for free speech, I’d say this is a pretty clear example of Fair Use. TV ads use clips and quotes from their opponents and the media all the time. Without the recording present, I don’t think that NPR would have any copyright claim on just the quotations of the text. I see no real substantive difference between playing the recording and quoting it, other than the additional personal impact of a person’s voice. Quoting or replaying a segment from a news source for the purpose of making a political message would seem to be the epitome of Fair Use.
Its surprising to me the NPR is trying to issue a cease and desist for this type use. It seems like almost like an effort to remove themselves from the bias of the campaign. In terms of fair use, since the ad is centered around an issue of public concern, and was not made for a profit motive, NPR will have a difficult time tearing down a defense for fair use. This is interesting because its obvious that NPR as a news organization does not want in any way be perceived as biased, so when their objectivity is threatened they pursue anti free speech legal angels to stop it, even if they are not justified. I remember vaguely a quote from a judge concerning free speech, it must protect the speech you hate the most to be effective.
I can definitely see why NPR would not want to be associated with such a campaign, especially as the clip used is completely out of context and does not include the surrounding commentary on NPR, making the news story come off very one-sided. The use misrepresents NPR, and I would see this case as involving moral rights were it not in America, where they are not in play. Aside from the amount and substantiality of the portion taken, I think that the other three factors would point to it not being a fair use as well, especially the effect of the use on the potential market. Portraying NPR as in any way biased as a news source would definitely infringe on its market of trusting viewers.