Reporting the news, or making it? When things don't quite "ad" up for Fox

Though she is still officially on Kat Sabbatical, Catherine Lee (alias Cat the Kat) has sent us this little piece to keep readers amused, bewildered or slightly troubled, depending on their perspective:
Waiting for mummy to come
home with tonight's dinner ...
Like many readers of this Blog, this Kat has seen the weaponry of copyright deployed in often creative but sometimes bizarre factual circumstances.  One of the more bizarre instances occurred recently in relation to comments on research which was presented on Fox News. 
The research, conducted by the Pew Research Centre ("Non-partisan, non-advocacy public opinion"), was released on 29 May and, among other things, concluded that that in 40% of US households with children, mothers are the sole or primary provider.  By way of comparison, the share was just 11% in 1960. 
On the Lou Dobbs Tonight TV show, broadcast by Fox, various male Fox News personalities commented on whether the report spells trouble for American families.  For instance,politically conservative blogger Erick Erickson said ‘When you look at biology, when you look at the natural world, the roles of a male and a female in society and in other animals, the male typically is the dominant role. The female, it’s not antithesis, or it’s not competing, it’s a complimentary role’.  Fox News political journalist and analyst Juan Williams went as far as to say that it reflected the ‘disintegration of marriage’ and that ‘something going terribly wrong in American society’.

On 31 May Fox News host Megyn Kelly replayed these provocative comments and used them as the basis for a live debate with Dobbs and Erickson about working and family lives in the United States (click here for a spirited 12 minute debate and for attempts by Dobbs and Erickson to water down their original comments.  So far Fox News had no objection to broadcasting such controversial comments. 
Reporting the news ---
or making it?
UltraViolet, an online community which advocates women's equality, then used some of the more inflammatory sound bites by Dobbs, Erickson and Williams in the footage which had already been broadcast by Fox News to create an advertisement highlighting the sexist stance of these Fox News personalities (the 30 second advertisement is here).  Throughout the clip a voiceover states: ‘Lou Dobbs has a problem’ … ‘Women are winning the bread’ … ‘Even his own network isn't safe from this source of lady breadwinners’  … ‘Tell Fox to retire Lou Dobbs, Erick Erickson, and Juan Williams and spare them the pain of equality’.

What do you think happened when UltraViolet tried to buy advertising time to show it on Fox News?  It was flatly rejected by Fox News, somewhat surprisingly on copyright grounds.  Earlier this month Laura Bassett reported in the Huffington Post that, when asked what rationale Fox News used to reject the advertisement, UltraViolet co-founder Nita Chaudhary forwarded an email from the group’s media buyer, Buying Time LLC.  Here’s what it said: 
Team – Just heard back from Fox Business. Unfortunately, Fox has rejected the ad. Due to their copyright rules, they can’t air an ad that uses their material in a spot. 
This Kat would be interested to know what is meant by ‘their copyright rules’ for under US copyright law she cannot see how it would be a reason for blocking the advertisement (the same goes for her view of UK copyright law).

Surely it is not an infringement of Fox News’ copyright in the original broadcast for Fox News to rebroadcast excerpts from such broadcasts in a later advertisement on the same channel.

From the US perspective, UltraViolet’s use of the excerpts would be protected by the doctrine of fair use.  As we all know, in respect of US copyright law, under 17 USC §107 the factors to be considered in determining whether the use made of a work in any particular case include:
  • 1.       the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 
  • 2.       the nature of the copyrighted work; 
  • 3.       the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 
  • 4.       the effect of the use upon the potential market for or value of the copyrighted work.
Taking each briefly in turn:
  • the purpose of the use was to criticise the opinions of some Fox News personalities and to raise awareness of Ultraviolet: it was not for commercial gain.  
  • the copyright work is various discussions of the changing nature of working and family lives in modern America which had already been broadcast on Fox News with its consent.  
  • the advertisement uses short sound bites from longer interviews, although highly selective.  
  • the advertisement does not compete with Fox News broadcasts: indeed no one would watch the advertisement instead of Fox News.  
In this case it was the opposite with this Kat: after watching the 30 second advertisement, she went back to watch Ms Kelly’s interview and the Lou Dobbs tonight segment to see what the fuss was about.
Merpel wonders why Fox News was not more direct with UltraViolet.  If it does not like UltraViolet’s opinion and does not need its money, why try to hide behind a dubious copyright claim?  
Reporting the news, or making it? When things don't quite "ad" up for Fox Reporting the news, or making it? When things don't quite "ad" up for Fox Reviewed by Jeremy on Wednesday, June 19, 2013 Rating: 5


  1. Interesting post--I just wanted to point out that while I agree with your analysis, as a frequent watcher of the Daily Show I have been exposed to the interesting and I hope controversial idea (incidentally, usually from clips from Fox News) that nonprofits, far from seeking only to educate the public, are rather seeking by such advertising to raise their own profile and to attract donations. Thus, the rationale would go, the purpose of this work was actually for the self-interested gain of UltraViolet. While I disagree completely with this rationale, I think it is good to be aware that it could be brought up and possibly believed by some.

  2. We seem to be seeing the spectre of "copyright reasons" being used in the same way as the gremlin of "'elf and safety" - namely, a convenient excuse to cover an unpalatable, inconvenient or thoughtless decision-making process. It is successful in this regard, like "'elf and safety", since the rules are complex, with many grey areas, the risks for failure to comply are percieved as high, for example jail time or punitive damages, and the subject has a moral dimension, promoted as akin to theft or plagiarism. Hence, it provides an excuse that will be readily accepted, at least by those who do not think too hard, or, if disbelieved, will be very hard to effectively challenge. Pointing out that the "policy" is unreasonable will be met by the cast-iron rebuttal of "that's not what our lawyers tell us".

  3. In the UK, the network would be entitled to turn down that ad on the basis of the regulatory rules on the broadcasting of adverts - it is an important principle that advertising and editorial content needs to be distinct from each other (leading, for example, to a ban on advertising toys related to a cartoon within 2 hours of that cartoon being screened). An ad which contained editorial content from the channel might be considered to confuse consumers who might think they were watching the editorial content.

    Tempting to add that this would apply in particular to the viewers of Fox News...

  4. What if the copyright owner is not FOX, but a production company producing the show for FOX (I am just speculating here; it is however according to my knowledge an often used business model in the broadcasting business).

    While broadcasting the ad might qualify as fair use when looking at FOX and UltraViolet, as UltraViolet is a non-profit organization, the situation might be different when looking at FOX and said production company.

    FOX, by accepting payment for sending the ad, does clearly not qualify as a non-profit organization and accordingly it might be the case that one testing for fair use arrives at a different conclusion when applying the fair use test.


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