Steal this Footage

Should a tv news critic who uses the video camera instead of the pen be limited to only those copyrighted video materials he can license for use? Does it make sense that a documentary filmmaker critiquing the way a certain news company produced their news be limited to describing the events and not be allowed to provide clips of what he is commenting on? Wouldn't that allow the content/copyright owners to foreclose commenting on specific news segments just because they refused the license. Shouldn't fair use, allow such critical commentary regardless of the media it was created in and the media that the critic chooses to publish his work? Do you think Justice Scalia would argue that the First Amendment limits critical commentary to published reviews because at the time of the Constitution the video camera did not yet exist. It's possible we may soon find out, because Robert Greenwald expects to shortly release his latest documentary 'Outfoxed: Rupert Murdoch's War on Journalism,' that "features interviews with former Fox employees, leaked policy memos written by Fox executives and extensive footage from Fox News, which Greenwald is using without the network's permission." (How to Make a Guerrilla Documentary, NYT, Robert S. Boynton, July 11, 2004)

Professor Lawrence Lessig, who its mentioned in the article is part of Greenwald's legal team, posted this on his blog earlier today:

On what theory does he, and others, have the right to use such material without permission? On the free culture theory we call the First Amendment: Copyright law must, the Court told us in Eldred, embed 'fair use'; 'fair use' is informed by First Amendment values; the values of the First Amendment most relevant here are those expressed in New York Times v. Sullivan. As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium - now liberated by digital technology - is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first.

More info on the film, including a review, comments by Fox, and where to view it from another member of Greenwald's legal team member - Joe Gratz - here.

Post title relates to the following comment by Fox's VP for legal affairs in the Washington Post: "People steal our footage all the time. We generally sort of look the other way." Lessig replies thus: "I take it she’s referring to the fair use by others of FOX's footage, and if so, then bravo FOX. Fair use, of course, is not stealing...."

Update: More comments from Fox: Fox Fights Back Against 'NY Times' Over Film Story (Editor & Publisher, July 12, 2004) [via Gawker]

see also: The Heat Is On: Fahrenheit 9/11 / Moore Fact Checks Himself

Wonkette has all the Outfoxed Memos

Lessig on Copyrighting the President or how the media control copyrighted clips of the president unable to defend the war in Iraq so Uncovered: The Whole Truth About the Iraq War can't use it without subjecting itself to uninsurable (sic) litigation and damages.

Remix Outfoxed