Chapter 20

News and Talk Programming: Competition for Content

Perhaps the most competitive arena in local television and the jewel in the crown of the national network organizations is their news, information, and talk programming. During the past decade, there has been a gradual movement of time allocation on local broadcasting stations from entertainment to news and talk. Comparing the daily schedules of stations from 1970 with those of 2000, one sees the entry of early evening local newscasts and late night competition. Independent and Fox Network affiliated stations claim a jump on late night information over their network affiliate competition with the 10:00 P.M. newscasts. National morning programs like Today, Early Show, and Good Morning America; news magazines such as Dateline, 60 Minutes, Prime Time Live, 20/20, and 48 Hours; and Sunday morning interview shows, including Meet the Press, Face the Nation, This Week, and Late Edition, present up-to-the-minute information, contesting for viewership. Paralleling this trend is the evolution of all-news channels on cable television—CNN, MSNBC, Fox News, CNBC, and dozens of local-market 24-hour cable news channels.

Underpinning the development of news and talk programming is the critical issue of content. A blurry line marks what you can take from the competition in developing a story and who can claim ownership over the rights to information. Remember the copyright maxim: Expression is protectable, ideas are not. This is the single most important copyright precept in the development of news programming. Once a story is out, anyone can cover it. From a copyright law perspective, a broadcaster may quote portions of another news outlet's content, even without permission, provided it is within the limits of fair use. Since fair use is a fact-based analysis, caution must be exercised when using programming developed by the competition.

Moreover, a special provision of the Communications Act, the statute that governs the behavior of radio and television stations, interacts with copyright law and dictates what television and radio licensees can legally do. Under Section 325(a) of the Communications Act, a broadcaster cannot “rebroadcast” the programming of another station without the original station's permission. This means that, if a CBS station has videotape of a news story from an ABC competitor, even though the fair use doctrine of copyright law would justify limited use of the tape on air, the Communications Act requires that the CBS station obtain consent. In this respect, the Communications Act provision is in conflict with the fair use provision of the Copyright Act, because the copyright law would allow use without consent.

Recall the events in the example in Chapter 1 involving the gunman who marched into a television station, taking it over, only to kill himself on air. Reporting that compelling story involved use of off-air recordings of another station. Even if the local television competitors successfully developed a fair use claim under copyright law, the Communications Act has no equivalent exemption. Ironically, if the competing news organization using the TV footage was a cable news channel, the station using the footage would have been freer to grab the fair use portion and replay it on the air because the consent requirement only applies to “broadcast” facilities, which means radio and television stations. A television affiliate in the same market, creating the same story, could be violating a cardinal tenet of its broadcast license. This statutory conflict has never been resolved by the FCC or the courts. Therefore, broadcast affiliates need to seek permission if they intend to rebroadcast another station's programming. Fair use may be a defense to a copyright claim but not to a complaint filed with the FCC.

It is commonplace to have reporters from various media outlets set up outside a locale where news is breaking. Where each is writing his or her own story, filming events as they unfold, putting their own spins on developments, there is no problem. If one station's cameras capture an event unfolding before anyone else, it is a sure bet that, absent the most extraordinary circumstances, fair use will not justify another station's taking the video without permission. So competitive is the marketplace for news, so expensive the process of news gathering, that convincing an appellate court that use of another's work product was a fair use is difficult indeed.

Licensing news and information is an alternative. Because over 25% of a television station's budget can be allocated to news gathering, recouping some of that investment by licensing to third parties, especially those outside the market, is a practical necessity. Wholesaling video stories to organizations such as CNN allows stations to recover part of their investment when their news content airs in distant markets. Similarly, national news organizations can repackage programs with local emphasis and relicense their use.

Newscasts and Content Rights: Things to Consider

However, stations have to be careful that they hold the rights they grant to others. There are some misconceptions in this regard. Let us examine a few.

Interviews

Anyone who is interviewed owns his or her own words. While the station can claim copyright to the tape by virtue of direction, camera work, or editing, the subject of an interview holds rights to what he or she says. As a matter of good business practice, it makes sense to obtain releases from anyone who appears on camera. But that is not always practical, since interviews may be in response to fast-breaking events. The use and reuse of the interview can be justified on the basis of implicit consent and fair use. However, if challenged, a station could find that, after the initial broadcast, any use, including the licensing of a story to other news outlets, can create a legal exposure. The bottom line is this: Do not assume all interview footage shot by a station may be replayed without new permission.

Stringers

Many news stories are compiled by news-gathering specialists who are not regular employees. They may be hired to help produce a specific story or be in the business of selling stories they develop. In either case, very careful attention to their contractual relationships is necessary. Suppose, for example, a cameraman, who is not a regular employee but is paid to cover a story for an evening newscast, captures the video event of the year. What uses may the station make of that footage? One-time broadcast rights are clearly envisioned by the relationship, but how about resale of the footage to other stations or other news media, such as cable channels and foreign stations? How about clipping a photo out of the video and licensing rights to the photo to a newspaper or chain of newspapers or posting the image on a website? What about incorporating the footage into a videocassette on the “news stories of the year”? Absent an agreement, each of the uses constitutes a copyright exploitation that is not owned by the station. Unless a written agreement with the stringer transfers the work to the station, defines his or her contribution as a work made for hire, or specifically embraces reuses and resale to other media, those rights may not be held by the media. Only if the commonly accepted practices of the industries are very clearly known to cover these uses or the station's prior experiences with the stringer make it apparent that both parties anticipated such uses when the employment understanding was made and the fee paid, would the rights be held by the station.

The copyright rights of stringers, freelance authors, and photographers in a digital age are so important and complex that the U.S. Supreme Court was asked to resolve a dispute involving leading newspapers, magazines, online database services, and individual claimants. We discuss the 2001 decision in The New York Times Company, Inc. v. Tasini in detail in Chapter 30.

A variation of programming from stringers involves the corporate “whistle blower.” To get the “inside story,” some news media hire corporate employees to carry hidden cameras or tape recorders into business meetings. The tapes of confrontations may be telecast on news magazine programs such as 60 Minutes and 20/20. In one case, a network was caught in a novel copyright squeeze in its exposé of a grocery chain. The program included video footage taped surreptitiously by an employee. The store's attorneys raised the issue of copyright ownership of the videotape as well as fraud. While claims of libel are hard to sustain in light of the video proof, the grocery chain argued that, since the store's employee made the tape on the job, the store was the copyright owner under the work-for-hire rule and the network's broadcast was a copyright infringement. The novel argument, however, is burdened not only by a legitimate fair use defense but also by the argument that, unless the employee's job description covered taping meetings, it fell outside the scope of employment. The novelty of the claim, however, suggests that copyright infringement claims may become more common in an era of video reporting.

Viewer's Videotapes

With digital Minicams selling for under $1,000, the world of stringers expanded exponentially. When an amateur photographer captured on tape the police beating of Rodney King and the ensuing uproar after its disclosure, his video became the most celebrated amateur footage since Zapruder filmed the assassination of JFK.

George Holliday's tape of the beating of Rodney King was provided to a Los Angeles television station for local use. He reportedly received $150, not bad for a home movie. But no one could have predicted that the fuzzy shots would spark civil unrest, become a symbol for police brutality, and be seen around the world.

After the local airing, the television networks, local and national news magazines, and others clamored for copies, which were readily released by the LA television station. The tape achieved a level of notoriety rarely reached by home videos. However, while the station received on-air credit from other media, the LA broadcaster neglected to see if it had acquired the tape with an ironclad understanding of the station's rights. In fact, its contract acquiring the tape was loosely drafted and left a loophole that inspired a copyright infringement lawsuit by Holliday. The suit was ultimately dismissed because the judge interpreted the station's release of the tape to others within the understanding of the parties, an overly generous judicial interpretation of the deal between the station and Holliday. The station escaped liability, but it could have avoided the issue entirely with a simple but more thoughtfully prepared release.

As a word of advice to the creative professional workers at TV stations, any time a station obtains video footage from a viewer, get a release that allows the station to air the piece and disseminate it “in all mediums, now existing or hereafter created.” Provide credit. Pay a reasonable license fee, but one based on the present value of the work, not the potential appreciated media value. Since most digital camera owners have no reasonable expectation that their home movies will make it big and the media outlet has the upper hand—it does not have to air the piece and most homemade videotapes are never seen on television—it is reasonable to obtain all useful rights for a modest sum. If the news department has the right nose for news, as our LA friends did with the Rodney King beating tape, it should pay for the tape. If the tape has commercial or hard news value, the money will be well spent.

There are firms in the business of tracking news events and licensing stations to use the videos they produce. One outfit in Los Angeles has a helicopter that trails traffic accidents on major thoroughfares and licenses footage that no other camera has caught. When LA broke out in riots after the Rodney King verdict, the helicopter crew caught the Reginald Denny beating on tape. That video also played nationally but for a fee. The local uses by LA stations were licensed; however, unlike the Rodney King footage, the helicopter entrepreneur and copyright owner captured the royalties from other media. The contrast of these stories underscores the evolving importance and exploitations that can be made of copyrighted videotapes. For the media professionals, it is urgent to appreciate that these works are not their own unless they are acquired outright. For the creative, professional videographer, the corollary is to retain what rights you may believe marketable in the future. At a minimum, a license should cover whatever needs are reasonably foreseen, which should include original and repeat telecasts. In cases of special footage, it should cover eventualities that might develop, such as licensing to a network or other news outlets as an integral part of a story. If the viewer knows the value of the tape or if another station in the market prizes it more, then bidding can go up. But in the marketplace, where fame is part of the coin of copyright and where use of a name in on-air credit can be worth a lot, stations should use that as part, perhaps a substantial part, of their consideration.

Rip and Read

It would be tempting for a radio station, eager to save a few bucks and still provide news and information, to deliver its hourly news headlines simply by reading the three-sentence news summaries that appear in the margins of many newspapers. This practice would push the envelope of what constitutes unprotectable facts as opposed to copyrighted expression. Taking more than 15 words of someone else's news report is clearly dicey. Taking 15 words or more from 5–10 top stories of the day is even more problematic. With many news services, such as AP, Mutual, and CNN providing news content for a price to any buyer, skimming stories off the top of a newspaper or magazine is a very questionable practice. Even though headlines are not copyrightable and quotation with attribution is appropriate in news reporting under the fair use doctrine, with the abundance of third-party licensed material, undisciplined use of third-party stories is legally suspect. To the extent that a station wants to save on news gathering while providing information to listeners and viewers, the strategy of “rip and read” other's works without payment should be flatly rejected.

Frame Grabbers

The digital photo analogy to rip and read is frame grabbing. With high tech equipment, publishable-quality stills can be made from videos. A digital machine that halts action with clarity and allows prints to be made enables the video media to make works available to print publishers. The photos derived from the video, which may require some cropping or touch-up, qualify as derivative copyrighted works. Stations should pay attention to this potential source of licensing. At the same time, they must also know the parentage of the video. If they grab frames from third-party videos or film and license or sell the stills, they may be violating someone else's copyright.

Bugs on Screen

In the past decade, the news media has sought more routine ways to make indelible identification of their work product. Hence, the birth of the bug. The current practice is to run on-screen, in the lower right or left corner, a logo for the news source. This trademark branding allows a copyright owner to ensure that, if video, which is relatively easy to copy and reuse, is appropriated by another, the source will be evident.

What is good for the national networks can be helpful for individuals, too. Digital cameras allow anyone to enter slugs, bugs, and other on-screen indications of source. If an amateur or professional is alert to what he or she is creating, then the idea of adding an identifier (name or logo) makes sense. While any digital markings can be undone, it takes effort and planning to do so. The markings can help in source identification if the question of authorship or authenticity arises. This is also true for all written work: place a copyright notice on the cover page and in footers of works distributed to third parties.

Titles of Newscasts

Action News and Eyewitness News are among the most common titles of newscasts. Yet, both phrases are registered trademarks, entitling the owners to assert rights against not only stations in their own markets but throughout the country. As a matter of practice, most stations that file federal trademark registrations do so to protect their status in their local areas. Nevertheless, the rights they secured through federal registrations are not so bounded.

The crucial point for federal trademark owners to appreciate is that, if their trademarks are registered and they learn of third-party use of the same mark, they must act promptly to demand that use cease or that it be licensed. Because broadcasting involves interstate commerce and commerce over technically wide geographic areas, the right to prevent use of the same program title in distant markets is well established. But sleeping on one's rights (in the legal term, laches) and allowing a third party to invest in building up a reputation transforms legal rights. Even if a broadcaster could have claimed exclusivity and stopped a use, that right could be lost if not enforced in a timely fashion.

The utility of enforcing federal trademark rights in the title of newscasts is made more urgent by the arrival of the Internet. Many stations have local Web pages under the ubiquitous www.(station).com. If a station has a registered trademark for the title of its newscast (Action News), not only can it claim www.actionnews.com but it can also prevent any other station in the country from using an identical name. (If you doubt it, review Chapter 15.)

Video Monitoring

In the 1980s, “video monitoring” became the new “clipping service” for the electronic media. A technological relative of the time-honored newspaper clipping service, video monitors set up shop by running a bank of VCRs, taping local and national newscasts, and selling clips to customers for a cool $125 per 5 minutes of tape. Starting out as a “mom and pop” business with a string of VCRs in the basement, the practice has grown into significant and sophisticated enterprises with national revenue in the tens of millions of dollars. Claiming that news is anyone's to take, these operations were challenged in a series of copyright lawsuits. The legal bottom line is this: Broadcast stations own their news programming, and the video monitors need a license to reuse the images. This is good news for broadcasters because it establishes that they can control an emerging market for focused information from their newscasts.

The principal difference between the video monitors and their newspaper clipping ancestors is that the newspaper services buy multiple copies of a newspaper and physically clip from the copies. Under the copyright first sale doctrine, the copies are owned by the purchaser and may be sold or given away, as long as no extra copies are made. By contrast, video monitors tape full newscasts off the air with commercial motivation (arguably a copyright infringement right there), then reproduce selected portions relevant to customers. Whether they are memory tapes (copies for people who forgot to turn on their home recorder when they or relatives were interviewed on camera or appeared in a “man in the street” shot) or more sophisticated telecast researching for a company concerned about newscasts on a particular topic (e.g., Philip Morris asking for all network and Top 10 market newscasts clips discussing tobacco issues), resale of the news is a new business opportunity for media outlets.

Sophisticated video monitors even fax summary reports for those who cannot wait for overnight delivery of the tapes. By grabbing a few frames and running edited transcripts, a quick report can be prepared on any newscast, and it can be faxed or e-mailed within minutes of airing. Unless licensed by the news media, all these uses—editing video clips and texts and frame grabbing—constitute multiple copyright infringements.

Unquestionably, video monitoring is a secondary use of the news content. While some stations fear it will increase the potential for lawsuits because it will be easier for third parties to spot libel or defamation when they can review tapes of live telecasts at their leisure and reflect on the content, video monitoring is here to stay. Broadcast stations and networks should assert their ownership of the content and either sell the clips themselves or license one of the willing video monitoring firms and recoup some of their costs.

Historical Writings and Plagiarism

There is a thin line between reporting historical facts and improperly claiming credit to the creation of works. Even Pulitzer Prizewinning authors can be ensnared in disputes. In January 2002, noted historian and author Steven Ambrose was forced to apologize for taking too much information from some of his source materials without adequate credit or quotation. The matter did not arise from a direct claim of copyright infringement, because the subject matter of the dispute—borrowing factual information from previously published works—is a gray area of copyright law. Rather, Ambrose was charged with plagiarizing published works, effectively weaving too much material from the work of others into his book and claiming personal credit and authorship. He is not the first, nor will he be the last, author trapped in such a web. Several decades earlier, Alex Haley, whose book Roots became one of the most acclaimed television series of all time, was accused of lifting the description of the voyage of slaves from Africa to the American colonies. Haley paid a significant sum to settle the claim.

In cases involving claims of plagiarism, the second author may not have copied passages from a previous work. Instead, the second author may be accused of taking the selection, organization, and arrangement of facts, and thereby short-circuiting his or her own research and writing requirements. A proper copyright analysis of this issue will take into consideration whether the selection, organization, and arrangement is dictated by the facts themselves (ie., a natural order of things) or creative in choice and structure. Thus, a description of factual matters in chronological order or a recitation of the highlights of an event or career will receive little or no credit for copyright purposes. By contrast, the unusual juxtaposition of information or the insightful linking of events and analysis can create something copyright law will protect.

As noted in discussions throughout this book, a general statement of copyright law is that facts and ideas are not protected. A writer of history (or a newscaster) who borrows facts appearing in a published work is taking something that is not copyrighted. Nevertheless, copyright law grants protection to the words used to express the facts and the original selection, organization, and arrangement of facts. Even though the hard work needed to locate the facts, the so-called sweat of the brow embodied in individual research, is not a basis to grant copyright protection, originality of expression and creative composition are.

Despite the ambiguity under copyright law, scholarship and news reporting have higher demands. A serious author or newscaster who takes material from prior works or programs should adequately source the information, lest he or she be accused of plagiarism. Rigorous scholarship and news reporting can be more demanding than the law, and the damages are not monetary but scars to reputation or disgrace among respected colleagues.

News Management

Not too long ago, news specialists remarked about the way in which Soviet leaders doctored photographs to “eliminate” enemies of the state. Modern technology has only enhanced the capabilities of the media to manage news events. For example,

• During O. J. Simpson's trial, Time magazine was accused of darkening a photo of O. J., making him appear more sinister.
• The credibility of NBC's news magazine Dateline was brought into question when it was revealed that it had staged an explosion of an automobile to prove that the placement of gas tanks was a public hazard.
• The Russians were up to their old tricks, painstakingly editing and digitally mastering hours of tapes of a sick President Boris Yeltsin to produce a 3-minute telecast showing him in the best form possible on the eve of Russia's 1996 election.

While copyright law gives owners control over the content in their works and technology makes it difficult to spot alterations, the news media have a special obligation. Although entertainment and opinion-oriented articles permit exaggeration, video news must maintain a standard of honesty when it comes to reporting events. In a digital age, it may be only the public's trust of its news sources that separates fact from fiction. If facts are manipulated, even though copyright law may protect the product, society suffers. It is the obligation of the news operations to guarantee that the public trust is honored.

These are a few of the highlight issues in news programming. Next, we learn about another crucial aspect of programming, music.