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Stand For Marriage Maine Is Hateful, But They Should Be Able to Use NPR’s Report

National Public Radio has a confused relationship with the gays. Or maybe we’re just confused about our relationship. Sometimes the radio network plays favorites with gay bashers. And sometimes they play favorites with whom they choose to out. But in NPR’s latest round of confusing policies, they’re demanding Maine’s “Yes On 1″ camp cease and desist using audio from one of their news reports in an anti-gay ad. Does it show NPR’s commitment to the gays? Maybe. But their premise is ridiculous.

As a news organization, NPR should understand more than anyone what “fair use” is. For those unfamiliar with copyright law, any person or entity is essentially free to “borrow” another person’s copyrighted work so long as it’s limited in scope and meets certain restrictions.

In this instance, Stand For Marriage Maine used in a television ad part of a September 2004 All Things Considered broadcast titled “Massachusetts Schools Grapple with Including Gay & Lesbian Relationships in Sex Education.” NPR says S4MM didn’t license the content (and had they asked, NPR says it would have refused), and therefore used the audio snippet illegally.

They’re wrong.

As despicable as S4MM is, the group very likely did nothing illegal. They used a limited portion of NPR’s news report that did not adversely affect NPR financially. Not only does S4MM not have to seek permission to use it, they should be able to do it again if they so please. It’s the equivalent of a movie studio “borrowing” a few lines of copy from an Entertainment Weekly movie review to convince you to see their film. S4MM used a few lines (of audio) from NPR to try to bolster their case to voters.

The Portland Press Herald has NPR explaining it thusly:

NPR doesn’t allow its content to be used by political or advocacy groups, [Dana Davis Rehm, NPR's senior vice president for marketing, communications and external relations] said, though it does allow personal, non-commercial use of its content as long as it is not modified, “and not used in a manner that suggests NPR promotes or endorses a cause, idea, Web site, product or service,” Rehm said. Rehm said Stand for Marriage Maine violated those terms.

“If the content were being used for the other side of the issue, we would have to take the same steps, and would,” said Rehm. “A partisan issue, a political issue of any kind – that’s prohibited by our terms of use. We can’t possibly permit it under any circumstances as a news organization. It’s a huge issue of credibility and trust.”

[...] Rehm said the ad’s use of the NPR story goes beyond fair use, the legal concept that allows use of small amounts of copyrighted material in certain situations, including political ads.

“The use of the (‘All Things Considered’) story was a very central piece of the ad,” said Rehm. “It wasn’t a small quote, or a quote among a series of quotes as often would appear in a fair-use situation.”

Rehm said NPR’s content is sometimes used in fair-use situations. In those cases, the organization would have little or no say in the use.

Too bad. It’s not up to them. Yes, the ad uses 20 seconds of NPR audio in a 30-second ad, which might be a wee too much (“fair use” takes into consideration “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”). And a good way to keep S4MM in the clear would be to make the ad longer and include a few of their own disinformation lines, making NPR’s audio a less substantive part of the ad. But quoting from a news report — which is different from republishing one in its entirety — should not be illegal, no matter who’s doing it.

NPR sent S4MM a cease and desist notice to get them to stop using the audio clip in television spots; they already got YouTube to pull the clip, although it’s been uploaded elsehwere (see above).

More amusing: S4MM is in bed with the National Organization, which itself filed a copyright dispute with YouTube when Rachel Maddow featured a NOM ad in her news report.

By:           editor editor
On:           Oct 21, 2009
Tagged: , , , , , ,

  • 4 Comments
    • RM
      RM

      I think you have an overly broad and not legalistic interpretation of “fair use” here. Fair use means that you can play the material for a classroom for educational purposes. Not so you can cut corners in making an ad.

      Oct 21, 2009 at 3:17 pm · @ReplyReply to this comment ·
    • Tommy
      Tommy

      1) NPR made a blanket claim against SFMM based in large part that SFMM was reposting snippets of NPRs reports on their YouTube account. As the owner of a copyrighted work – and as an owner that makes their work FREELY obtainable through their own channels – NPR has the right to pull down their work from a website that can use it for commercial gain (since YouTube can make money from the pageviews).

      (I should note that SFMM Facebook commenters consider the copyright claims to be a conspiracy between Facebook, YouTube and NPR against their opinion in favor of “teh gays.”)

      2) Regarding the advertisement, Fair Use is applied on a case-by-case basis. It is a qualitative analysis, one where quantity is rarely considered. For instance, a 5-second clip may be more of a violation of copyright than a 5-minute clip.

      Also, attribution isn’t a protection against copyright infringement. Protection against Plagiarism, sure, but not copyright infringement.

      Further, NPR may feel that the SFMM quote may pervert the intention of their original work. While SFMM may use a portion of the original work in order to criticize the overall intent and tone of the original work, in order for SFMM to use a portion to support their view, the original work must generally support their view as well.

      In other words, you can’t take a supportive sentence from an otherwise critical article and color that sentence as being representative of the article.

      Oct 21, 2009 at 3:54 pm · @ReplyReply to this comment ·
    • Tom
      Tom

      Also, SFMM posted the ENTIRE NPR story on their website using YouTube, and later another video hosting service, and plastered their logo on it. That is way beyond fair use.

      Oct 21, 2009 at 11:30 pm · @ReplyReply to this comment ·
    • San Francisco Treat
      San Francisco Treat

      whoever wrote this needs to brush up on their copyright law. the homophobes took the content without asking – that’s stealing. tommy concisely and thankfully dismantled your argument above. perhaps you should consult with an attorney before making legal arguments in the future.

      Oct 23, 2009 at 7:51 am · @ReplyReply to this comment ·

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