More on Plagiarism and Fair Use
The New York Times’s Sports Section had another plagiarism story yesterday, this one relating to NBC’s broadcast of the Kentucky Derby. Apparently in the pre-race show, NBC ran through the challenges faced by a number of the participants, including Michael Matz, the trainer for eventual-winner Barbaro. Matz had been in a plane crash and rescued three kids. Sounds like genuine heroism.
NBC captured this by using language from the television show West Wing, which had its series finale Sunday night. The borrowing of West Wing dialogue took two forms. Tom Hammond, one of NBC’s announcers, stated that Matz “ran into the fire to save the lives of three children,” and then paused and repeated, “ran into the fire.”
For those of us who are West Wing watchers—my wife and I netflix it and just started season 6—that line immediately resonates. Fictional President Jed Bartlet, played by Martin Sheen, delivered that line in an end-of-episode speech, a line written by heartthrob speech-writer—this is fiction remember—Sam Seaborn, played by Rob Lowe. The NYT also quotes a second line read by Hammond and matches that with corresponding text from West Wing.
NBC has already conceded the plagiarism and has said that it will no longer accept work from the responsible freelance writer. Last week, I raised the question of the relationship between plagiarism and copyright’s fair use doctrine. What should we think of this situation?
As I noted before, it would be easy to have a case of plagiarism that would still be fair use and this is probably just that. If we run down the standard four-factor analysis for fair use, we will quickly focus on the extent of the borrowing and what the borrowing does to the market for the original work.
Here the borrowing was quite minimal. West Wing runs roughly 43-minutes and we are probably talking about under 20 seconds of dialogue. Copyright doctrine is smart enough to recognize that not every 20 seconds is worth as much as some other 20 seconds. In the Harper & Row case, the Supreme Court talked about borrowing the “heart” of the work—in that case, key quotes from former President Gerald Ford’s forthcoming memoir. While the Bartlet speech was the dramatic climax of the show, I’m skeptical that the “heart” analysis would preclude this use.
As to the effect on the market for West Wing, as Judge Posner emphasized in his Beanie Baby opinion, we might start by asking to what extent the new work substitutes for the old work. If you heard Hammond on the pre-race show using the West Wing dialogue, would you decide not to watch that episode of West Wing? That seems silly: they are completely different shows and one shouldn’t be thought to substitute for the other the way that Lay’s potato chips might substitute for Ruffles.
There is a second angle to the effect on the market question and this gets us closer to derivative works and licensed uses. It seems hard to suggest that the pre-race show derived from the West Wing episode. Had NBC known of the borrowing, they would have put on the same show with different language.
Try another angle: what effect did the borrowing have on the market for selling tidbits of West Wing dialogue to other television shows? That must sound bizarre, though that idea roughly matches up with the suggestion of the Supreme Court in another case, Campbell v. Acuff-Rose. In that case, 2 Live Crew wanted to do a version of Roy Orbison’s song Oh, Pretty Woman. Indeed, they offered to pay for the right to use it, but when the answer was no, 2 Live Crew went ahead anyway with their song (which features references to a “big hairy woman”).
The Supreme Court rejected the notion that 2 Live Crew’s parody was “presumptively unfair” merely because 2 Live Crew was looking to make money. But the Supreme Court also sent the case back to the lower courts not to find out what the parody had done to the market for the Orbison version itself, but rather to see what 2 Live Crew’s use had done to “the market for a non-parody, rap version of” Oh, Pretty Woman.
Campbell pushes us towards figuring out the limits of markets for copyrighted works, not merely in their original forms, but also for a series of related uses. I think that that is tricky, but it is hard to imagine easily the West Wing snippet market.
So we have fair use, I think, but not use you would actually want to make, given our norms regarding plagiarism. Sanctions for plagiarism operate partially in parallel to copyright remedies, but here, the penalty for plagiarism is such that even though the use was fair, it was foolish.