While embedded with the U.S. Army in Afghanistan in October 2005, Australian freelance photojournalist Stephen Dupont captured exclusive footage of members of the 173rd Airborne Brigade burning the corpses of suspected Taliban fighters. His footage — both still photos and video — was used by numerous news outlets to illustrate the unsettling story.
That U.S. soldiers were burning the bodies of vanquished Taliban foes was news in and of itself, and Dupont’s exclusive documentary evidence of the event seemed to cast new doubts on the U.S. conduct of the war on terror.
Although media attention on the story died down after a few weeks, a copyright dispute has been smoldering ever since between NBC and Dupont, along with his agency Contact Press Images (CPI).
A complaint lodged on behalf of Dupont in July states that NBC ran his copyrighted footage without permission, playing it prominently on the “Today” Show and NBC Nightly News on October 20, 2005. Dupont filed the complaint and a copyright infringement suit against NBC Universal, Inc. on July 20, after the copyright that he’d applied for in October was finally issued.
If a settlement is not reached, the case will likely hinge on the legal definition of “fair use,” the exemption to copyright law that allows for limited use of copyrighted material in some situations.
NBC’s official court response is due Sept. 8. Barbara Levin, a spokeswoman for NBC, says the network believes its use of Dupont’s footage constituted fair use.
“This videotape was a critical component of an important news story, and prompted a government investigation and debate about the conduct of the soldiers captured on the tape,” insisted Levin, senior communications director of NBC News. “Under well settled law, NBC is permitted to share excerpts of the videotape with its viewers.”
But Joel Hecker, a New York-based copyright lawyer unaffiliated with the case, says it will be difficult for NBC to prove fair use, at least considering the facts in Dupont’s complaint.
“Had he taken the Taliban burning incident images and said ‘no one can have them and no one can use them,’ … then their availability might have reached a level that the public need to know would become a fair use overriding everything else,” Hecker explains. But because the footage was made available for licensing for a presumably reasonable fee, Hecker doesn’t think fair use applies.
Dupont initially established a non-exclusive license with an Australian station to broadcast his footage on their “Dateline” program on Oct. 18. According to Dupont’s formal complaint, NBC took the footage from the Australian station’s website, contacted CPI about licensing it, but then ran it without permission. It also claims that the network distributed the tape to its affiliates with a warning that it “had not acquired any rights from the copyright owner of the film.”
Dupont’s lawyer, Kenneth P. Norwick, maintains that NBC is treading dangerous ground in its fair use argument.
“If they win fair use [in this case], it would suggest that people can help themselves to their exclusive news footage,” he says.
When deciding if usage constitutes fair use, a court generally considers four factors: whether it is for commercial or nonprofit use; the nature of the work; the amount and importance of the portion used; and the “effect of the use upon the potential market for or value of the copyrighted work.”
Copyright lawyer Nancy E. Wolff of Cowan, DeBaets, Abrahams & Sheppard, LLC, says the final factor carries the most weight, and would be very hard for NBC to circumvent.
Jeffrey Smith, CPI’s executive director, said the agency had been in negotiation with other news outlets for distribution rights of the footage, which fell apart once NBC had already “poached the exclusive.”
This could prove important if the court rules in favor of Dupont and damages are awarded. If the plaintiff were to win and opt for actual damages, CPI will have to prove how much in potential licensing revenue it lost due to NBC’s usage, or to in some other way establish market value. If Dupont were to opt for statutory damages, the judge can reward from $750 to $30,000, or up to $150,000 if willful infringement can be proven, for each infringement.
But fair use is decided on a case-by-case basis. Wolff says the best thing a photographer can do to protect against infringement is to register their work immediately with the copyright office. Without a copyright, photographers don’t have the right to ask for statutory damages or attorney’s fees, only licensing fees.