McCain, Fox News, and “Fair Use”
A copyright infringement argument has sprung up between John McCain and Fox News recently. On a Republican presidential debate hosted by Fox News, John McCain had a sharp criticism of Hillary Clinton’s attempt to give $1 million of taxpayer dollars to a Woodstock museum. McCain had the following to say about Woodstock:
I wasn’t there. I’m sure it was a cultural and pharmaceutical event. I was tied up at the time.
That’s pretty funny, and I laughed when I heard it. McCain quickly took the 25-30 seconds of the debate video and made a presidential ad out of it. In response, Fox News issued a cease-and-desist letter to McCain’s office, telling him that he was not allowed to use Fox’s coverage for his presidential ad. McCain used the clip anyway, and now many groups with wildly different views on politics have come together to denounce Fox for trying to stop McCain from using their clip. Mitt Romney even made it a point to inform Fox News that he’s going to use their footage without their persmission. Most of the criticism leveled against Fox seems to be centered around the idea of “fair use.” Since the video clip shown was so short (30 seconds out of a 90+ minute debate), it was not shown for commercial purposes, and because the clip contains information an issue that is very important to our society, Fox News should not be able to stop McCain from showing the clip.
I agree that McCain has not violated Fox News’ copyright, but I don’t agree with most of the arguments I’ve heard against Fox. This is not easy for me to explain, but I’ll try now.
I believe that Fox News is the rightful owner of the debate video that was broadcast on its network, and Fox is well within its rights to stop any action that prevents it from exercising its control over its intellectual property. The “2007 Republican Presidential Debate hosted by Fox News” (or whatever it is called) is a piece of property created and owned by Fox News, and if you want to use that property you have to get Fox’s permission. So how can I say McCain to use a clip of that video without Fox’s permission? One sentence in Ayn Rand’s Capitalism: The Unknown Ideal completely changed the way I saw intellectual property, and I think it might make this issue easier to understand:
The inheritance of material property represents a dynamic claim on a static amount of wealth; the inheritance of intellectual property represents a static claim on a dynamic process of production.
Since owning material property is to possess control over something that exists, an owner of material property can cut that property up and still claim rights over every piece. For example, if you own a stick of butter and you cut it in half, you now own two half-sticks of butter. Your property right is claim on a specific piece of property, and by splitting it you merely changed the makeup of the object that you already own. Intellectual property cannot be cut up in the same way, however. An owner of a piece of intellectual property cannot necessarily cut up that property and then claim the same ownership rights over the pieces as he or she does on the whole. For example, an author cannot take one sentence out of a copyrighted book and claim to own the right over that sentence based on his copyright over the entire book. Ownership of a piece of intellectual property is the abilty to control the production of that property. Taking small bits out of a copyrighted work, like McCain did when he took the 30 second clip from Fox’s debate, does not harm Fox’s ability to control its property. Fox owns the publication rights of the debate, but it does not own the publication rights over every single word that was uttered on that tape.
This is not a limitation of copyright; it’s the definition of copyright. To own a copyright on a work is to own the copyright on that work, not every word or note that makes up the work. Many people think that the taking the concept of copyright to the “extreme” means that intellectual property owners will be able to stop anyone from seeing, hearing, or even talking about that content without explicit permission from the owner, but that’s not the truth. Copyright covers works created by individuals, and that’s all. Did McCain’s 30-second clip infringe on Fox’s ownership of the 90-minute debate? No.
Or did I, for that matter, violate the copyrights owned by the estate of Ayn Rand when I posted one sentence she wrote. No, I did not. Imagine what blogging would turn into if single sentences could be copyrighted!
I think this type of confusion about copyright comes from the backwards way that people often view copyright. Instead of treating copyright as the way to protect an individual’s creation, people treat it as a set of restrictions on what an individual can do. I think the latter approach lends itself to the idea that there has to be some “fair” balance between complete restrictions and no restrictions. Rights cannot be balanced, though. The only valid question is whether Fox has the right to control that clip.
I see one valid way for Fox to stop presidential candidates from using its video like this. All it has to do is make presidential candidates agree not to use the video in anyway in exchange for a spot on the debate. It wouldn’t stop people like you or me from using clips, but it would have given Fox a valid argument to use against McCain.
Tags: [copyright, fair use, fox news, intellectual property, mccain]Comments
3 Responses to “McCain, Fox News, and “Fair Use””
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I think a lot of the confusion regarding copyright comes from the way it is used. Copyright was never intended to be a lever for corporations to protect their productions, but a means for artists to protect their works.
In the U.S., however, most of the copyright news is made by the RIAA and the MPAA, both of which represent huge corporations and not individual artists.
To make matters worse, the U.S. does not recognize moral rights. These are rights by which the artist of a work has to perpetually identified as such, even if he or she sells off the copyright to it. Other nations have this right and that protects artists by giving them a set of rights independent to their actual copyright.
In the U.S., and slowly most of the world, copyright is being used as an economic tool, a means of control and that is why it is being thought of as you said.
Artists have to take copyright back if we’re ever going to see any change.
Great article and wonderful food for thought!
Thanks for the comment, Jonathan! I don’t know if I necessarily agree with the idea of giving the creator some type of right to his or her own work that separate from copyright, though. Included with the right to own something is the right to sell it or give it away. If the government prevents an artist from selling all rights to his or her own works, the government is not granting the artist additional rights. It is actually taking rights away from the artist.
I also don’t see a difference between a corporation using copyright to protect its property and an artist using copyright to protect his or her own property. So long as the corporation obtained the rights to those works fairly, I think they have the same legal and moral right to that property as if they were the original creator. As bad as the RIAA and MPAA might seem, they are still the legitimate representatives of a lot of artists. Artists who *voluntarily* signed with the organizations, too. If artists really want change, all they have to do is tell the big companies “No.”
I looked at your site, PlagarismToday.com, today, and I really like it. I also listened to your latest podcast about various copyright-related issues, and I thought it was very interesting. Most of the commentary I hear related to copyright is by those who are openly against it, but you are different. I’ve added you to my RSS reader, and I look forward to reading and listening to your posts in the future!
First, dealing with moral rights, they are funny that way. Not only do you have the right to attribution, but also the right to non-attribution. If you don’t want your name fixed to it, you can decline to be attached to it. In some countries you can sell your moral rights, in others you can’t, that’s something that you have to take case by case, same as in some they expire, in others they are perpetual.
Technically, according to the Berne convention, the U.S. is supposed to support moral rights but never implimented the law in any meaningful way. VARA gave some rights to visual artists but still not the full set.
There really is little technical difference between the corporations and the individual artists but there is a perception. Corporations, when protecting their rights, tend to focus more on what users can and can not do, artists tend to focus more on protecting their interests. In truth, it is all in the presentation and I think the record labels need to learn from that.
Anyway, I’m glad that you liked the site. I’m definitely not against copyright but I”m not an extremist either. Let me know if you have any questions or if there is anything I can do for you!