This article discusses the copyright implications of news broadcasters using videotape and other images in their newscasts. News broadcasters obtain audio and video materials for use in their broadcasts, and on most occasions they obtain these materials from a variety of sources. The broadcaster cannot infringe on the copyright of the news source unless given permission by the source or decide to use it under the Fair Use Doctrine. However, a newscaster may also use the copyrighted material under a possible exception created by the First Amendment right to freedom of the press. The law that provides a creator with property rights in his or her creation begins with the Copyright Clause in the Constitution. Section 107 of the Copyright Act adds to copyright protection, and it codifies the common law Fair Use Doctrine. Under the Fair Use Doctrine, a broadcaster can use copyrighted material without seeking permission so long as that use can be justified as a fair or reasonable use. Section 107 provides four factors that must be considered when making this fair use analysis. However, Congress left it entirely up to the courts to apply these factors and decide whether a particular use is fair. In Holliday v. CNN, the court decided that the Rodney King videotape was used to convey a matter of "high public concern" and, therefore, it was allowed to be used. Since the Fair Use Doctrine does not offer complete protection to news broadcasters, the First Amendment offers further possible protection. In Holliday v. CNN, the First Amendment was a factor for the court allowing a broadcaster to use the Rodney King footage. Most courts have used the First Amendment in their analysis of applying the Fair Use Doctrine, and it could provide further protection for news broadcasters from a possible copyright infringement. Expanding the scope of the Fair Use Doctrine by implementing the First Amendment would make it easier on the news media in broadcasting news stories. However, expanding this privilege may affect the quality of broadcasts and discourage individuals from making their copyrighted materials available to the media. A possible enhancement of the Fair Use Doctrine must be carefully adopted because it is necessary for the exceptional situations, such as the Rodney King video, to be shown to the public.
Leslie Ann Reis, The Rodney King Beating: Beyond Fair Use: A Broadcaster's Right to Air Copyrighted Videotape as Part of a Newscast, 13 J. Marshall J. Computer & Info. L. 269 (1995)