Walter Scott was stopped driving a 1991 Mercedes on April 4 2015 by Officer Michael Slager for having a brake light out in North Charleston SC. Scott chose to run from the officer and was shot dead in what was first reported as a suspect fleeing.
Scott was reported as being afraid of being sent to jail for the outstanding warrants for him which were mostly for non payment of child support and failure to appear. Slager had reported that Scott had tried to grab the officer's taser and he had feared for his life when he shot Scott.
Several days later a video surfaced that showed the end of Scott's life and it showed a very different story than the one Slager had put into his report. Feidin Santana had filmed that part of the chase with his cellphone without anyone knowing it. He later turned the video over to the Scott family who in turn, gave it to the New York Times. He claimed that he feared for his life from the police because the video he had taken did not confirm what Slager had reported to have happened. It shows a very different story of Slager taking aim at the fleeing Scott and rapidly firing eight shots at his back. It also does not show any officer attempting to give Scott CPR as had been reported.
The video hit the airwaves and was show hundreds of times in varying lengths while it accompanied reporters stories. Several versions of it as well as the dashcam video at the beginning of the traffic stop have been uploaded to media sharing sites like Youtube and it went viral in hours.
Now comes the announcement by Markson Sparks, an Australian celebrity and publicity management, that they own the rights to that video now and plan to charge a one time fee of $10,000 for the use of the video. Markson Sparks CEO Max Markson has stated that the price is based on a case by case basis and could go over $10,000 at times. It has been reported that cease and desist letters have already been mailed out to various outlets asking for that fee to be paid for further use of the video. Santana states that he did not know or have anything to do with demanding payment for further use of the video.
Some news media outlets are reprinting the NY Times story of this new development without paying much attention to the full content of the article. The announcement has brought the discussion of copyrights and fair use to the forefront again. Markson's view of the issue is that the news media has been allowed to use the video for free for a week or so which is long enough for fair use and now that he is copyrighting it, they will have to pay to use it. He could not be further off the mark in how the US interprets fair use of a video or image.
"In the US, using the video of the shooting, a very news worthy event, as part of news coverage is almost certainly a fair use, meaning that no payment is required," stated Mark Stoltz, a copyright attorney with the Electronic Frontier Foundation.
Fair use is not just a group of clauses in the law, it is an entire legal doctrine that predates the current Copyright Law being used now. Recent Supreme Court decisions in regards to fair use have shown that it is what prevents the copyright law from infringing on First Amendment rights in the US. Fair use is such an integral part of freedom of the press in the US that section 17 U.S.C. 107 specifically addresses news reporting and copyright infringement.
The case most commonly compared to the Scott video is the filming of Reginald Denny by LANS a news company. They sued for copyright infringement from the use of their video and at least one lawsuit was successful but most were lost on the basis of fair use. They had more merit that the Scott video does because they did have to pay for the use of a helicopter to make the film. Markson's claim though will not have even that to back him as people do not invest in a cellphone for the only use of filming news worthy items. There is also no time limit as to when an item can still be called news worthy. The Zapruder film is still newsworthy decades after the shooting of JFK and the Scott video is still news worthy as this case continues through the court system.
The Times article also states that they are allowed to use the video without payment because they have the permission of the Scott family. This does not make any sense because the Scott family does not hold the copyright to the video. It is believed that Santana holds that copyright and they would need his permission to show it for free if they keep the same interpretation of the copyright law as Markson is using. What most probably will happen is that they can try to strong-arm payments from various news agencies for continued use of the video but they will most likely fail because of the fair use law and the media's abilities to use it. They may prevent or gain financially from the use of the video by commercial venues in the future.
Fair use is a grey area though and there certainly are times that it can only be settled in court. One has to remember though, just because they own the copyright on a video of photograph, that item can still be used without compensation through fair use. They would have to prove that they were damaged by the use or their ability to gain financially was diminished as well as whether the item was used in the reporting of the news.
I recently had my own encounter with a strong-arm business owner. The photo I had used in another blog story.... a news story was used without the "owner's" permission. The new Copyright Law states that a photographer does not have to watermark or mark their copyrighted material with the symbol anymore though, they strongly suggest that the artist do that as a further protection. It alerts someone that it has been copyrighted and if that symbol had been removed from the work when it was used by another, the violation is very obvious.
Back to my story though.......... It is also suggested that the owner of the item contact the "offender" by email or mail to notify them of your stand on the usage of their work. This would not be the very unprofessional contact through comments made on the post which included the F bomb. The strange thing was that the photo used had been published in a newspaper and was attributed to a person other than the F bomb king. My reply was to apologize openly and remove the photo he claimed to own but had not taken. This could have been true because he lists a photography company that may well purchase photos for resale and therefore, copyrights them.
I felt that my use on a totally non funded, non profit news oriented blog was within the fair use laws but I won't argue it if they want their work taken down. Imagine my surprize when the F bomb king returned to post another comment using what I imagine was his favorite word starting in F and ending in K. In that comment he stated that he was offended that I had apologized, compared my "theft" of his photo to breaking into my home and stealing things but having no job, he couldn't pay for replacement and ended with another threat to sue me for payment for the use of his photo.
I was more than surprised to read the comments because all I could think was here is someone who lists themselves as a business owner and they are using this kind of language on an open forum. It did nothing to impress me and actually made me feel sorry for the future of his business. Seriously...... you searched the web for an "illegal" posting of a photo, which was already old news when the newspaper used it in their story and frankly, there is a miniscule chance it will ever be used again by anyone who will pay. The photo was the basically of a guy sitting in court.
The odd thing is........ after firing off two F bomb loaded comments and the threat to take it to his lawyer, he removed the first two posts and left one that was sternly warned me to stop stealing photos. My guess is that someone explained the foolishness of even trying to spend the kind of money it would take to go to court over something that probably will prevail through fair use. Yes F bomb king.... photos are protected by copyrights but the first amendment also protects the right of fair use of that copyrighted material. Seriously.... get over it...... the photo was not a significant piece of art nor was it it in the running for a national news or photography award this year. It has been removed so it will not keep you awake all night now.