Fox News goes liberal (on copyright law)

By Eriq Gardner

Fox News loves "fair use" ... if it can help win a copyright lawsuit.

Rupert Murdoch may be on the record attacking the legal doctrine as an excuse for online piracy, but attorneys for the mogul's top-rated cable news network are hanging their hat on fair use in responding to a lawsuit brought by a TV producer who claims FNC improperly aired an interview with Michael Jackson's ex-wife during its nonstop coverage of the singer's death.

F. Marc Shaffel says he owns the copyright on an interview with Debbie Rowe and has been targeting news outlets such as Fox News and TMZ for showing portions of the interview without permission. The case raises questions about the boundaries between an entertainment clip and a fair-use news product.

Fox News earlier this month filed a motion to dismiss based on two big defenses, and a showdown is set for Monday in a Los Angeles court.

The arguments?

First, FNC challenges whether Shaffel should be entitled to copyright on the clip in the first place. 

Fox points out that Shaffel registered copyright on the interview a month after the network aired the interview. Fox says the interview was a work-for-hire and that at the time of the airing the interview was controlled by Fire Mountain Services, a company owned by Michael Jackson.

In other words, Fox says if anybody has standing to sue, it's Michael Jackson — but of course, he's dead.

Second, Fox says the airing was a "fair use." In the motion to dismiss, the company claims:

"[Fox News Channel] transformed the Rowe Interview by adding new expression and by using it for a different purpose from the original. This transformative use of a factual and historical work for criticism and commentary on a news program is a fair use that is not actionable as copyright infringement."

That's a pretty reasonable argument. But, of course, Murdoch has loudly complained that websites like Google have stolen his content by liberally citing the "fair use" doctrine. Murdoch once said this: "There's a doctrine called fair use, which we believe to be challenged in the courts and would bar it altogether."

Fox News better hope Rupert's not right. Barring fair use altogether would make the Shaffel lawsuit a tough one to win.