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Chances are the stars would prefer not to be seen this way, but so far, the legality of publicly broadcasting the feeds remains untested. That may change, of course, should the anchors and celebrities and the media barons they work for decide to press the issue in the courts, as they almost did in 1996 when a TV network threatened to sue Rosenzweig for a public broadcast of a wild feed.

Rosenzweig was a New York video artist in 1996; today he works for a major Web portal. But his claim to fame arrived with some off-the-cuff remarks by Tom Brokaw about fellow anchorman Dan Rather. During a rehearsal at the Republican convention, NBC's Brokaw said Rather had often reported false stories fed to him by Richard Nixon's White House. "I felt this was a much more compelling version of television than TV itself," said Rosenzweig, who created what he called a "piece of video art" around some intercepted feeds, "presented as if it were a TV show." After screening the clips as "Wild Feed TV" in a gallery show in New York, he announced his intentions to air the candid remarks as a one-time public access TV show.

Within a day of the announcement, NBC's legal department contacted Rosenzweig, telling him the tape was a violation of a section of the Communications Act that bars the retransmission of satellite signals. Rosenzweig claimed fair use, a legal principle set out in copyright law that allows material to be borrowed without permission for one of six "exemplary purposes," which include news gathering and commentary.

Fair use, of course, is often cited by members of Brokaw's trade, when songs or movies need to be broadcast to illustrate a story or an obituary; Rosenzweig cited the principle based on his artistic prerogatives. "Jed was engaged in a critique of the media, trying to educate viewers on the mediation between the news and news reporting, to show what it's like behind the scenes," said First Amendment lawyer Robert Perry, who offered to defend Rosenzweig pro bono. He said Rosenzweig's argument was compelling because the use of the feeds was not commercial and had no effect on the market value of the borrowed work, important considerations in walking the line between fair use and copyright infringement.

Perry had previously represented 2livecrew, a band that looms large in entertainment (as opposed to journalistic) fair-use cases, because the group fought all the way to the Supreme Court for the right to parody "Pretty Woman," Roy Orbison's hit single. "In the 2livecrew case the Supreme Court was quite clear that it was a transformative use" of copyrighted material, said Bob Corn-Revere, a First Amendment lawyer in Washington. In other words, the artists were taking something (a protected piece of intellectual property) and making something new with it (an artistic parody). Corn-Revere would not comment on any specific cases, but said he isn't so sure about the legality of broadcasting wild feeds: "If you're talking about taking copyright material and merely re-presenting it, I'm not sure you have the same issues."

Intellectual property faces new kinds of challenges in the digital age, but the fair-use principle works the same online as it does in every other medium. "The Internet has presented decision-makers with unique factual situations," Corn-Revere said, "but the basic principles are the same on the Internet as they are anywhere else."

Rosenzweig ultimately opted out of the free-speech debate by choosing not to air the Brokaw clip on his TV show. He said he was daunted by what he saw as "the unlimited resources of NBC, and a judicial system that's generally not very sympathetic when it comes to artistic license."

Ironically, CNN did broadcast the comments in its own story about the controversy. Brokaw later said the remark might not be true and that he regretted its "reckless" nature. Kim Akhtar, Rather's spokeswoman, said the CBS anchor knew of the Brokaw flap, but indicated that he was only vaguely aware that he was being portrayed in clips elsewhere on the Web. "He just takes those kinds of things in stride," she said.

Rosenzweig has taken a number of outtakes to his Wild Feed TV Web site, which he originally set up in 1996. Though he recently updated the site -- which until May offered its video in the slow-to-download MPEG format, but now boasts streaming video -- Rosenzweig still shies away from showing the controversial Brokaw clip. But he continues to defend the value of the feeds: "They pull back the curtain to show the real show behind the show," he says.

Truth be told, the wizard seems smaller than ever. But does he know it?
salon.com | July 29, 1999

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