Using the “Heart of the Work” is something everyone should consider before relying on the fair use defense
Plaintiff Los Angeles News Service (LANS) licensed its news stories, photographs, audiovisual works, and other services to other news media outlets. While covering the 1992 Los Angeles riots, LANS filmed several segments of nighttime rioting, including the iconic segment titled Beating of Reginald Denny. Although LANS refused to grant defendant Channel 9 television station a license, the station broadcast the footage a number of times on commercially sponsored news programs.
Plaintiff sued the defendant for using an excerpt of its copyrighted videotape of the Reginald Denny beating during the 1992 Los Angeles riot.
The TRIAL court, weighing the statutory factors of 17 U.S.C.S. § 107, found that summary judgment for the defendant under a “fair use” defense was proper. On appeal, the APPEAL COURT held that summary judgment was improper: defendant’s use of plaintiff’s copyrighted tape was arguably in the public interest, as a percipient recording of a newsworthy event, defendant’s use was commercial and came in the wake of plaintiff’s refusal to issue a license.
Although the defendant used the tape because it recorded news of considerable significance from the best perspective of any witness, there was no evidence that alternatives were not available.
There was no dispute that the defendant used the “heart” of the tape. Under such circumstances, the court could not say that “fair use” was the only reasonable conclusion a trier of fact could reach. Summary judgment was thus improper.
Fair use is a mixed question of law and fact.’ If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985); other citations omitted).
Amount and substantiality of what was used. While a small amount of the entire Videotape was used, it was all that mattered. As we said of the defendant Audio Video Reporting Services in Los Angeles News Service v. Tullo, which provided a video “news clipping” service by monitoring television news programs, recording them on videotape and selling copies to interested individuals and businesses, “[a]lthough AVRS copied only a small part of the raw footage shot by LANS, it was the most valuable part of that footage. In preparing a newscast, a television station selects the most effective and illustrative shots from the raw footage available. Thus the news programs AVRS copied included what LANS’s customers thought was the best of the LANS footage — its `heart.'” Id. at 798. Here, as there, this factor weighs against KCAL, for “the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else’s copyrighted expression.” Harper & Row, 471 U.S. at 565, 105 S.Ct. at 2233.
AS YOU CAN SEE, MAKING THE CALL ON FAIR USE IS NEVER AN EASY ONE. BEFORE USING COPYRIGHTED WORKS WITHOUT A LICENSE, ASK “AM I USING THE HEART OF THE WORK?” IF SO, IT MIGHT BE BETTER TO REFRAIN FROM COPYING, EVEN IF FOR “NEWSWORTHY PURPOSES.”