News outlets are drooling over outtakes from NBC’s “The Apprentice” that might show Donald Trump behaving badly. The show’s creator Mark Burnett says Metro-Goldwyn-Mayer owns the tapes and contracts prevent him from releasing them.
But say there was a leak, and the outtakes land on an editor’s desk. Can MGM come after the leaker or a news outlet that airs them for copyright infringement? The answer—according to copyright lawyers and law professors that Bloomberg BNA spoke to—is no.
The big player in this scenario is the fair use doctrine, which under federal copyright law allows a range of uses without the permission of a copyright holder. News reporting gets protection from fair use doctrine big time.
“They’ve got a good fair use defense regardless of a contract,” says Sandra Aistars, a copyright and entertainment law professor at George Mason University.
In theory, Aistars said someone can sign a contract giving up fair use rights, but no news organization that gets a Trump video is going to do that.
Trump has already threatened The New York Times with legal action for its reporting of accusations by women that Trump touched them inappropriately, so he might try legal action himself if the outtakes are released.
But he might look to the case of Raanan Katz, the owner of the NBA’s Miami Heat, who lost a case when he tried to sue a blog for posting an unflattering photo of him. Katz tried to go for a claim of defamation and when that didn’t work, he bought the copyright interest in the photograph and then sued for copyright infringement. That didn’t work either and Katz eventually lost and was ordered to pay the blog’s $155,000 legal fees.
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