EFF Staff Attorney Wendy Seltzer has concluded the below-referenced online colloquy on fair use and academic publishing; below, a snippet on the fair use argument for using Fox News clips to criticize the company's reporting:
Question from Lloyd Davidson, Northwestern Univ.:
Robert Greenwald's new film, Outfoxed: Rupert Murdoch's War on Journalism, will probably attempt to escape copyright infringement lawsuits against his use of significant excerpts from Fox's news programs by claiming that critical and satirical use of such material is protected. Whether you have seen the movie or not, do you think that such a significant use of material could ever have a chance of being protected from copyright infringement suits based on such a defense?
While I haven't seen the film, I'd argue strongly in its favor as protected fair use -- whatever political angle it takes. I'd similarly defend a critic of Michael Moore's who wanted to use excerpts from Fahrenheit 9/11. So long as the excerpts are used in the process of criticism, and not merely gratuitously, they serve a purpose different from that of the original work and don't substitute for the original's commercial market. In today's multimedia environment, you can't effectively criticize newsmakers without using materials in which they may claim copyright. We need to ensure our critics have access to the same tools and technologies that their targets have.