Outfoxed and fair use -- in tomorrow's NYT magazine

July 10, 2004 11:05 AM

Calblog on Why I'm not discussing the uninteresting Drudge headline today:

I could blog extensively about the latest Drudge Headline touting the most recent cable wars between Fox News and its rivals. I could write at length about how Michael Moore's Fahrenheit 9/11 film is inspiring an entire new front in the political/information wars now sweeping this country.

I could tell you about how notions of "fair use" and "copyright" will now be used by political opponents to try and monopolize political debate and the use of media hit-pieces to try and influence entire elections.

About how one party can potentially use copyright laws to prevent another party from accurately informing the public about allegations against them by utilizing the sanctioned monopoly on information expression.

About scenarios where Moore will successfully use unauthorized footage under the banner of "fair use" - but when right-leaning filmmakers use the same techniques, they will be hit with a flurry of lawsuits touting copyright and right of publicity violations.

I could tell you about how most people who care about political issues (Drudge obviously included), might think that such issues are important and need to addressed and re-addressed at length since this is ultimately a long term battle that goes against the entire grain of the legal culture in regards to these issues.

I could tell you all of that. But then again, we've certainly "had enough threads on 'intellectual property rights' 'copyright laws' and 'patents' " on this site. Wouldn't you agree? Hmmm??? ;-)

As Drudge points out, tomorrow's NYT Magazine piece will explore these issues that Outfoxed brings to the forefront.

Elsewhere, the NY TIMES magazine on Sunday is planning a detailed expose on the FOX NEWS movie, and the question of the documentary's fair use of footage broadcast on FOX NEWS.

Editor & Publisher previews tomorrow's exclusive NYT piece:

With controversy already brewing over the soon-to-be-released documentary "Outfoxed," The New York Times Magazine, in this Sunday's issue, offers an exclusive preview. Writer Robert S. Boynton calls the film's "most stinging blow" to the Fox News "fair and balanced" claim a series of daily memos apparently sent to the entire Fox news operation by John Moody, a senior vice president.

According to director Robert Greenwald, the memos were provided by two unnamed Fox employees. The Times says they "set the agenda for how events will be covered."

One memo, believed to be circulated in April, suggested how to cover the rise in American deaths in Iraq: "Do not fall into the easy trap of mourning the loss of U.S. lives." Another covered the U.S. siege of Falluja: "It won't be long before some people start to decry the use of 'excessive force.' We won't be among that group." Referring to the 9/11 Commission hearing, a third urged: "Do not turn this into Watergate."

The article also reveals the filmmakers' concerns about legal actions by Fox. "Nobody has ever made a critical documentary about a media company that uses as much footage without permission as Greenwald has," Boynton writes, "and the legal precedents governing the 'fair use' of such material, while theoretically strong, are not well-established in case law."

Greenwald has hired several lawyers. "I want to make a great film," he told Boynton. "But I'd like to do so without losing my house and spending the rest of my life in court."

No one from Fox would comment on the film. The article says Greenwald's lawyers were still deciding whether to "go through the motions" of asking Fox for permission to use the extensive clips or wait to see if the network will actually sue. "If they are lucky," Boynton writes, Fox will not use, recalling the backlash to its lawsuit against Al Franken last year.

The movie, which the Times says "combines the leftist partisan vigor of a Michael Moore film with the sober tone and delivery of a PBS special," will debut Tuesday night in New York and be shown at Moveon.org house parties across the country a few days later. A large chunk of its $300,000 budget was provided by Move On and the Center for American Progress. Volunteers from Move On also helped Greenwald monitor the cable news channel day and night.

The film also features interviews with Walter Cronkite and media critic Eric Alterman. Eric Clapton allowed the free use of "Layla" because of a longstanding dislike of Fox owner, Rupert Murdoch. Don Henley donated his song "Dirty Laundry." But CBS denied use of clips from "60 Minutes" explaining "it didn't want to be associate with a controversial documentary about Murdoch," according to the Times. WGBH refused permission for use of a clip from "Frontline" for fear to looking too "political."

Appearing on Friday night, Greenwald said he interviewed for the film a total of nine ex-employees of Fox.

Outfoxed and fair use -- in tomorrow's NYT magazine (07.10.2004)

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