The Bob Cesca / Sarah Palin Question
Does the Fair Use doctrine give Bob Cesca the right to reproduce and criticize videos published by Sarah Palin on her paid-subscription website, or does Ms. Palin’s copyright on the work protect it from being reproduced without her permission?
Recently, blogger and political writer Bob Cesca was targeted by Sarah Palin's media group, TAPP TV, for posting several excerpts of videos from Ms. Palin's pay website. An overview of the entire controversy may be found here. At first glance, there seems to be a paradox in U.S. law: on the one hand, the United States Constitution guarantees the right to free speech. On the other hand, the United States guarantees copyright protection for authors and artists that prevents people from reproducing their works without permission.
Everybody Has the Right to “Fair Use” of Copyrighted Material, Even over the objections of the Copyright Holder
Even though a copyright holder has certain exclusive rights over the material he or she created, this right does not prevent “fair use” of that material. Examples of “fair use” include quoting that material for use in commentary, search engines, criticism (such as The Daily Banter), parody and news reporting.
17 U.S.C. § 107. Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
More Information About What Is and Is Not Fair Use
The law quoted above outlines four factors which determine whether something is or is not “fair use” of otherwise copyrighted materials:
- Purpose/character of the use.
- Nature of the copyrighted material.
- Amount of the of the copyrighted work being used.
- Effect of the use on the potential market value of the copyrighted work.
Purpose and Character Definition
Does the use of the copyrighted material advance knowledge and/or the progress of the arts through the addition of something new? If so, it would be considered fair use. If the purpose instead is just to create personal profit for the user at the expense of the original artist, that would not be fair use.
Purpose and Character As it relates to Bob Cesca and Sarah Palin
Bob Cesca’s use of material from Sarah Palin’s website was a clear act of political criticism and political satire. It was an effort to engage in political debate on the character of a prominent political figure. In no way did it attempt to supersede or replace Ms. Palin’s work but rather to criticize it. Mr. Cesca's use of Ms. Palin's content for the purpose of criticism and satire is entirely in keeping with the purpose and character described as “fair use” in the Copyright Act of 1976 and within the right to free speech guaranteed by the First Amendment.
Nature of the Copied Work Definition
From time to time the courts have used the doctrine of “fair use” to enable use of copyrighted materials because of the very nature of the copyrighted work in question. For example, on November 22, 1963 a private citizen named Mr. Abraham Zapruder used his home movie camera to photograph President John F. Kennedy’s visit to Dallas, Texas. Mr. Zapruder happened to film the assassination of President Kennedy at that time. Time Magazine purchased and copyrighted the film from Mr. Zapruder. However, the courts did not uphold their right to the copyright because of the nature of the copyrighted work. They ruled that the Zapruder film rightfully belongs in the public domain due to the nature of the work in question.
Nature of the Copied Work As it Relates to Bob Cesca and Sarah Palin
It does not appear that Ms. Palin's videos would lend themselves to any argument that they need special protection due to their nature, and thus this factor would not likely be an important factor in this specific case.
Amount and Substantiality Overview
It is easier to claim “fair use” when only an excerpt of the copyrighted work is used. For example, it is easier to claim “fair use” when quoting a few sentences from a book than when quoting an entire chapter.
Amount and Substantiality As it Relates to Bob Cesca and Sarah Palin
Bob Cesca posted only excerpts of Ms. Palin's videos (as he does from many, many other sources). It does not seem that the argument of amount and substantiality should affect quoting articles or video clips on a blog. For a more complete discussion of fair use and the internet see the following article from Stanford University: http://fairuse.stanford.edu/overview/fair-use/cases/
Effect Upon the Value of the Copyrighted Work Overview
“Fair use” does not entitle someone to use copyrighted material to significantly harm the market or potential market of the original work. In other words, if the person attempting “fair use” were to copy the item in its entirety that would clearly not be “fair use”. The copy could then take the place of the original work, thus severely undercutting the overall value of the original work.
Effect Upon the Value of the Copyrighted Work as it Relates to Bob Cesca and Sarah Palin
Clearly TheDailyBanter.com does not in any way reduce the market for Sarah Palin’s content by acting as a substitute for it. No one who currently consumes Sarah Palin’s content on her website is likely going to decide to consume it on Bob Cesca’s instead. The courts have consistently held that copyright considerations do not shield a work or “artist” against criticism. Bob Cesca’s comments may reduce the marketability of Ms. Palin’s blog and her point of view in general. However, this is clearly protected by Mr. Cesca’s right of free speech.
Copyright law gives business and individuals the right to protect their intellectual property. However, it does not protect them from criticism. Bob Cesca’s blog articles are clearly an exercise of free speech protected by the Constitution and by the fair use section of The Copyright Act.
Four principles of fair use to help bloggers decide whether or not to use copyrighted material
- Purpose and character.
Make sure your purpose is to advance knowledge or the arts, not merely to profit from another person’s work.
- Nature of the copied work.
If the work you are quoting is of national importance (like the home movie of the Kennedy assassination) or is not otherwise in need of special protection, you are probably safe in using it.
- Amount and substantiality.
Do not quote so much of the work that purchasing the original work would be unnecessary.
- Effect upon the work’s value.
You have full right to criticize a copyrighted work, even if it makes the original author's work less marketable. However, your quotation cannot be such that it could serve as a substitute for the original work and thus cause the original author to lose some of his or her market.