Tuesday, May 27, 2003

Media Watch catches comedian nicking jokes?

Well, that would seem to be a reasonable* enough log-line for this item from last night’s Media Watch.

I have previously blogged on Media Watch presenter (and lawyer and journalist) David Marr’s seemingly rudimentary grasp of copyright law.

Okay, David is usually at pains to use the term “plagiarism”, which, while basically co-extensive with the ambit of copyright law, has very different sanctions for breach. Plagiarists (in the strict sense of the word) are punishable, if at all, only by institutional disciplinary action and/or a process of public shaming. Last night, however, David, wasn’t even prepared to kick off the latter process and then let the matter run its course; instead of calling comedian Adam Richard a plagiarist, he labelled him a “thief” – so setting himself up as both chief judge (disciplinarian) and chief prosecutor (shame-starter). It did not seemingly cross David’s mind that Adam’s comedian peer-group may have its own processes for dealing with the plagiarism of comedy material.

I hesitate to make too much out of this, because in human terms, all that has happened is that David did not get even a murmur of concern in response to his direct prodding from one of Adam Richard’s bosses (and Adam’s comedian peers aren’t even on David’s radar) – so he has thrown the mother of all tantrums in response to some underlying abandonment issues. All utterly, yawningly de rigeur for a spoilt-rotten baby boomer.

Such qualms aside, I feel that there is a mark here which David has clearly over-stepped. He has picked on what he obviously considers a soft target – openly suggesting that Adam Richard be sacked from his weekly five-minute guest JJJ spot. Well, here’s a lesson for you, David – comedians don’t like being bullied. Or in other words, soft targets can bite back – and with more bile than your team of well-paid snitch brokers (sorry, “researchers”) could ever muster.

So let’s start the action with some recent examples of lite-news** thievery or indifference by Media Watch itself.


This amusing piece of Schadenfreude on Rene Rivkin picking Pan stock just before Pan went belly-up was a story broken by Crikey.com.au six days previously (and noted by me here one day after Crikey). Media Watch’s well-resourced research team managed to avoid citing Crikey.com.au – and so claim the all-important Schadenfreude as their own – by referencing the Rene Rivkin stock pick to something called “Richo & Richa” on 16 April 2003 (which, BTW, turns out to be a Sydney radio show on 2SM).

I can’t prove beyond doubt that Media Watch effectively stole Crikey’s Schadenfreude. But Crikey sure whalloped Media Watch in the race to the post, under any test. The Pan Pharmaceutical recall story broke over the afternoon of Monday 28 April, and Crikey covered it the next day, using the “previous week[’s]” (21 April, I am assuming) print Rivkin Report as its ‘that was then’ cornerstone.

Media Watch’s Monday 9:15 p.m. timeslot meant that it had only a few hours to research and break a Rivkin Schadenfreude story, if this were to run on their 28 April show. Clearly, they either couldn’t meet the deadline (even though Rene himself managed to get in an ‘I Was Wrong’ in his 28 April Rivkin Report) – or (and I think this is much more likely), no one at Media Watch was on the ball enough to go looking for a Schadenfreude angle as soon as the Pan story broke. The shoe-string budgeted Crikey nailed it the next day (good work there), so forcing Media Watch to backtrack for an alternative Rivkin citation, that they could then claim as their own.

The strongest evidence for such retrospectivity is that Media Watch have relied on an obscure, one-city 16 April radio program as their ‘that was then’ cornerstone – a source older (and therefore, in news terms, colder) than the 21 April print Rivkin Report, less national, and also less authoritative. And clearly Media Watch does have the Rivkin Report in its library – why on earth then, did it need to go back to a three weeks cold radio program (only obtainable via an expensive media monitoring service) for its 5 May ‘revelation’?


Big Brother - Big Bore

I feel a bit childish raising this one, but why hold back now?

It is beyond refutation that the fact that some episodes of “Big Brother Up Late” showed large swathes of people sleeping, and no more, was abundantly covered in the trashier sections of the media – and not to mention around office water coolers across the nation – well prior to 19 May 2003, the day Media Watch purported to break it.

Was this news-trinket therefore public domain by that time? My person opinion, and also common sense says, “yes” – but as David Marr evidently believes that all news important enough to go on his show has but one true source, and nothing else matters as long as this source attributed, then surely it is fair for David to be hoist on his own petard.

C’mon, David – admit it; you really got the ‘boringness’ gist of “Big Brother Up Late” from the two cleaners the lift at Ultimo (or from your cab-driver, etc etc). And if you and/or your researchers really are trawling all manner of late night television for nuggets suitable for setting-up later put-downs on your show, then: (i) the consequent overtime bill must be a killer, and (ii) I’m sure you could find lots of late night howlers less water-cooler passé, if you really went about this task properly.


* Which is not to connote fairness – if a viewer (or now, Media Watch website reader) had paid scrupulous attention, they would have noticed that the punch line to Adam Richard’s re-telling of the Melanie G/Antonio B snippet is not alleged to have been stolen. Without Media Watch placing a positive emphasis on this fact, it is easily missed – Adam’s joke has thus been lost in the translation (quite literally). See also Adam’s own defence.

** “Lite-news” exists in a legal border-zone, on the three-way fringe of the fair dealing for purpose of reporting news exception, the fair dealing for purpose of criticism or review exception, and the idea vs expression dichotomy that lies at the heart of Western copyright law.

The first two of these, which are the entiriety of the “fair dealing” defences for commercial (i.e. non-scholarly) contexts, depend on proper attribution of the original work for their efficacy; while the idea/expression dichotomy, of course, works on a different level. Bare ideas simply cannot exist in an attributable, original form; they are uncopyrightable per se.

“Lite-news” does not fit wholly comfortably in either of the two “fair dealing” exceptions, nor is it unquestionably bare facts. It nonetheless comes close to being each of these three. If it were formally attributed – and mostly, it’s not (below) – all “lite-news” would seemingly fit within one, or the other “fair dealing” defences. But as I suggested in my previous post on Media Watch over-prosecuting alleged plagiarism the “reporting news” fair dealing defence closely ties in with the blanket uncopyrightability of bare facts and ideas. Moreover, modern news reporting has accentuated this convergence – with the explosion in distribution channels for news (and much more, besides), the “original” of any important story will be near-instantaneously re-fashioned into hundreds of freestanding clones.

In this bog-standard journey through Google News and the “Refresh” button , the clones almost always surpass the “original” – there has been value-adding, by incorporating facts from other “originals” or facts derived autocthonously, or simply by better writing/expression of the original facts. Over the passage of minutes, news stories thus go through generations. And surprise, surprise – with all bar the very first generation, attribution usually falls by the wayside.

“Lite-news” travels down a similar chain to ordinary news, with the key difference being the absence of value-adding, aggregation, and so, generations of news. “Lite-news” generally preserves the “original” across generations – but just like ordinary news, attribution effectively diminishes with repetition. Like gossip, its intrinsic value often in fact positively correlates with journalistic sourcelessness.

Sourcelessness differs from legal ownerlessness, however, it that “lite-news” does have clear economic and/or cultural value – but only at, or near, the start of its lifespan. “Lite-news” is not so much perishable as biodegradable – it naturally fractures into economic valuelessness when the chain of its repetition becomes unsustainably wide.

After this point of disintegration, “lite-news” is unamabiguously public domain. Only one more step in its journey is possible – transformative use through comedy. With the addition of a punch line to the now-skeletal frame of facts, a new creation is born, and owned.

“Footnote Update” 28 May 2003

Thinking about what I wrote last night at about 4 this morning, I realized that I had not properly closed the circle of “lite-news’s” life cycle – in particular, what on earth is Media Watch doing when it gives public domain material (such as “Big Brother Up Late’s” boringness clearly was by 19 May) its nth spin – attributed to no one and nothing bar the original program, of course – through its proprietary, spectrum-rationed lens?

The most charitable explanation I could come up with is that Media Watch sees itself as engaging is some kind of transformative use of otherwise dead-end material. If so, such use is certainly not through comedy as it would be generally recognised, and so it may, even if attributed to the hilt, be a breach of copyright, in the a very similar scenario to that that in which Federal Court found that the TV show “The Panel” had breached copyright, by using external footage only for quasi-comedic (= snobbish and vague put-downs) purposes.

But this morning, an overnight email from Adam Richards himself put a new light on Media Watch’s 19 May “breaking” of “Big Brother Up Late’s” boringness. It turn out that Adam had spoken of this on his 5 May 2003 JJJ segment, making him one of the first to – if not the first – to “break” this piece of lite-news. And guess what – Adam’s 5 May 2003 segment was one of those closely combed over by the Media Watch team, in preparing their story in his alleged purloinings (5 May was the week of the Luther Vandross story).

Like an arsonist-cum-firefighter, then, Media Watch seems to be unable to stay away from the scene of the crime that they started, then cooked their dinner on, and finally “fought”.

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