While Brad Pitt and Rupert Murdoch are an unlikely pair, it is video footage of Pitt that has landed Murdoch in an awkward position over comments the media mogul made regarding “fair use.” Rupert Murdoch, the 79-year-old Australian born founder and CEO of News Corporation, is wishing he had not been quite so vocal about his feelings toward the “fair use” defense. Several months ago, Murdoch discussed the potential of blocking Google from including News Corporation content on its site. News Corporation’s vast media empire includes numerous newspaper publications — the Wall Street Journal, the Times, and the New York Post.

Murdoch accused Google of being a “parasite” by including news stories from News Corp. publications on its site, and prominently criticized “fair use” rules in a Sky News Australia interview. The irritated Aussie was not pleased with “people who simply just pick up everything and run with it,” stealing stories. It now seems Fox News, also owned by News Corp., has found itself in a precarious position for doing exactly that.

Fox News is the target of a lawsuit for displaying unauthorized video footage of Brad Pitt losing control of his motorcycle while driving in Hollywood. Fox News asserted the “fair use” defense, claiming it used the footage as “part of its continuing coverage of the Pitt family.” Media2Air owns the footage, which it had licensed to several other media outlets, but not Fox News. According to the Complaint, Fox allegedly downloaded the clip from another outlet and broadcast it in October 2009.

“Fair use” is an affirmative defense to copyright infringement codified at 17 U.S.C. § 107. The statute states that “fair use of a copyrighted work. . .for purposes such as news reporting. . .is not an infringement of copyright.” The statute outlines four factors for courts to consider in making the determination of whether or not use of a copyrighted work is fair, including: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) portion of the copyrighted work in relation to the whole, and (4) the effect of the use upon the potential market or value of the work. Fox news seeks to take advantage of the “newsworthy rule” in claiming that its use of the video footage was proper.

While Fox News may have a legitimate argument, Murdoch’s statements have come back to haunt him as Media2Air is now using his them against him. Even though Murdoch may not be a fan and has predicted courts will eventually bar “fair use,” for now, it still works.

— Thomas Booms

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