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<B><I>Decision of Note</b></i>'Daily Show' Wins Dispute on Fair Use

By Stan Soocher

A Manhattan federal district court decided that the airing of an unlicensed clip from a public access TV show to introduce a segment on Comedy Central's “The Daily Show” constituted fair use under copyright law. Kane v. Comedy Partners, 00-158. The “Daily Show” segment at issue opened with a one-second, full-screen shot of the plaintiff ' comedienne/stripper Sandy Kane ' dancing in a bikini. The title of “The Sandy Kane T.V. Show” is visible in the background. The clip is then further shown briefly as part of a video collage. A shorter clip of Sandy Kane's show is used in a commercial promoting “The Daily Show.”

Granting summary judgment for the defendants, the district court noted that the “Daily Show” use was not a parody, but added: “The only significance of deeming a work a parody is the concomitant determination that the work contains elements of commentary and criticism. … By airing plaintiff's clip in a segment called 'Public Excess' and adding some derisive commentary, defendants unquestionably used [the plaintiff's] material for the purpose of criticism.” The court also emphasized that the defendants used “only one-tenth of one percent” of Kane's half-hour show.

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