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Copyrighting The President: Does Big Media Have A Vested Interest In Protecting Bush? You Betcha |
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by Lawrence Lessig
(No verified email address) |
18 Aug 2004
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There's nothing neutral about restricting either critics or supporters from repeating the president's words. |
US president owns neither his words nor his image - at least not when he speaks in public on important matters. Anyone is free to use what he says, and the way he says it, to criticize or to praise. The president, in this sense, is "free." But what happens when the commander in chief uses private venues to deliver public messages, holding fewer press conferences and making more talk-show appearances? Who controls his words and images then?
Though Michael Moore's Fahrenheit 9/11 has grabbed the headlines, another documentary is at the center of this debate. In August, Robert Greenwald will release an updated version of his award-winning film, Uncovered: The Whole Truth About the Iraq War. Greenwald has added a clip of President George W. Bush's February interview with Tim Russert on Meet the Press, NBC's Sunday morning talk show. In the clip, the president defends his decision to go to war - astonishingly unconvincingly.
Greenwald asked NBC for permission to run the one-minute clip - offering to pay for the right, as he had done for every other clip that appears in the film. NBC said no. The network explained to his agent that the clip is "not very flattering to the president." Greenwald included it anyway.
Copyright law gives NBC the power to deny anyone the use of its content, at least presumptively. If you want to rebroadcast Meet the Press or sell copies on the Internet, you need NBC's permission. There are exceptions, at least in theory. The law, for example, exempts "fair uses" of copyrighted material from the control of its owner. If a clip is short enough, or if its use is sufficiently transformative or critical, then the law allows its use, whether permission is granted or not.
In practice, however, the matter isn't that simple. Because copyright law is so uncertain, and because insurance companies that indemnify films don't much like risk, the practice among auteurs seeking major distribution is to cut any clip for which permission isn't granted - fair use notwithstanding. The costs of defending a fair use right in court - and, more important, the costs if any such defense should fail - make the risk prohibitive for most filmmakers. Defense of fair use could run hundreds of thousands of dollars - several times the budget of a typical documentary. And losing this type of claim could expose the filmmaker to $150,000 in damages for each copyright infringed. In a world in which Fox News sues comedian and author Al Franken for parodying "fair and balanced," a cautious director can't be too careful.
Greenwald's struggle demonstrates a more fundamental point. Many are concerned about the ever-expanding reach of copyright law. More are concerned about the ever-increasing concentration of the media. Greenwald's dilemma highlights how the two trends are linked: As media becomes more concentrated, competition to curry favor with politicians only increases. This intensifies during an election cycle. Networks able to signal that they will be "friendly" - for example, by ensuring that embarrassing moments from interviews won't be made available to others - are more likely to attract candidates for interviews and so on, than networks that don't. Concentration tied to copyright thus gives networks both the motive and the means to protect favored guests.
NBC insists it is remaining "neutral" by denying others use of the interview. But there's nothing neutral about restricting either critics or supporters from repeating the president's words. But the issue here isn't really NBC's motive. It is the president's. Why would any president allow a network to copyright his message? No self-respecting president would speak at a club that excluded women: Whatever rights a private organization may enjoy, a president stands for equality. So why did the current leader of the free world, who rarely holds press conferences, agree to speak on a talk show that refuses to license on a neutral basis the content he contributed? Is vigorous debate over matters as important as going to war less important than protecting his image?
This question is crucial, and thus Greenwald has decided to defend his fair use right, even if it means staring down a bunch of lawyers in court. The argument: It's hard to tell "the whole truth" about the Iraq war when you censor bits of that truth because a network tells you to. But what this incident demonstrates most is what many increasingly fear. Concentrated media and expansive copyright are the perfect storm not just for stifling debate but, increasingly, for weakening democracy as well.
© Copyright 2004 The Condé Nast Publications Inc.
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