Of Copyrights and Campaigns: Fox News Network v. Carnahan for Senate

[Note: The following post originally appears on State of Elections, the blog for William & Mary Law School’s Election Law Society.  It is cross-posted here with their generous permission.]

by Jarred Taylor

The intersection of copyright law and elections is growing to be an important new area of study and litigation.  The Center for Democracy and Technology has documented and analyzed at least a dozen recent instances where video hosting sites like YouTube have removed political campaign videos pursuant to the Digital Millennium Copyright Act’s requirement that such sites comply with take-down requests submitted by copyright owners.  Indeed, in the run-up to the 2008 presidential vote, the John McCain campaign asked YouTube to more carefully scrutinize political videos for fair use or non-infringement before removing them pursuant to take-down requests.  (YouTube’s response noted that such special treatment was not only logistically impractical, but also might push the site out of the safe harbor protection afforded it by the DMCA for compliance with the “blind” take-down regime).

A related copyright/campaign controversy grabbed particular attention during the recent election cycle.  In September, Fox News filed a copyright infringement suit against the campaign of Robin Carnahan, the Democratic then-candidate for Missouri’s U.S. Senate seat.  (Carahan was eventually defeated at the polls by Republican Roy Blunt.)  The complaint alleged that Carnahan’s campaign “usurped proprietary footage from the Fox News Network to made it appear – falsely – that [Fox News] and Christopher Wallace, one of the nation’s most respected political journalists, are endorsing Robin Carnahan’s campaign.”  The ad (which you can watch here) consists almost entirely of footage taken from Wallace’s interview of Blunt on Fox News earlier this year.  In addition to copyright infringement, the complaint alleges invasions of Wallace’s privacy and publicity rights.

There are at least two key issues at stake in this lawsuit.  The first is the nature of the rights that Fox News is seeking to protect.  Instead of alleging an infringement of economic rights to its work, Fox News focuses its complaint largely around the effect of the unauthorized use of its work on its reputation.  Throughout its complaint, Fox News speaks of the ad “compromising its apparent objectivity” and “misleading” its viewers into thinking that it endorsed Carnahan as a candidate.

The aforementioned CDT reports put it best: “These are not copyright interests.  . . . The interests they are seeking to protect appear to concern their integrity, reputation, or false association, rather than exploitation, market substitution or incentive destruction.  These are trademark-type interests that may not even be legally cognizable.”  (CDT supports its conclusion through citation to a paper by William & Mary Law School’s own Professor Laura Heymann, which argues for a recognition and reinvigoration of the distinct divide between copyright interests and trademark interests).  To find political campaigns liable for copyright infringement based merely on non-copyright concerns would potentially turn a law designed to incentivize creativity into a weapon to stifle political speech.

A second key issue in this suit may seem rather “in the weeds” of copyright law technicalities, but it actually goes to the core of how copyright infringement suits might play out in future political campaign seasons.  Unlike with trademarks or patents, registration is not required in order to have a copyright in any given work.  Enforcing a copyright, however, is a different story.  Section 411(a) of the Copyright Act stipulates that “no civil action for infringement of the copyright . . . shall be instituted until pre-registration or registration of the copyright claim has been made” with the U.S. Copyright Office.

In support of its motion to dismiss Fox News’ complaint, the Carnahan campaign alleges that Fox News had not filed a completed application for copyright in the Wallace interview before filing its infringement suit.  So what?  Why is a completed application so important as a pre-condition to an infringement suit?  As the Carnhan pleading puts it, “the registrations define the legal right upon which a plaintiff is suing, and define its scope.”

For example, in this case, the Carnahan campaign believes that much of the footage it used from Wallace’s interview was actually public domain content from C-SPAN.  If Fox News’ application asserts a copyright interest in that content, its copyright claim in the work might be held to be overly broad, or made in bad faith (see Online Policy Group v. Diebold for an example of the DMCA’s treatment of a misrepresented claim of copyright infringement).   Alternatively, If the application admits that the segment contains third party or public domain material over which it does not claim a copyright interest, Carnahan’s fair use claims as to use of the segment are strengthened.  As the Carnahan pleading concludes, either way, Fox News’ “premature filing is fatal to its copyright infringement claim.”

Paying attention to these seemingly technical details has important ramifications for how copyright infringement suits may play out in future election cycles.  If content owners are required to file a completed application prior to bringing an infringement suit, they may well think more carefully about the nature and scope of their copyright claims.  Indeed, they may reconsider the decision to sue altogether for fear that they will be found to have made a claim that is overly broad or in bad faith.

Although the election has passed, the lawsuit continues.  Fox News has sought leave to amend its complaint to attach its completed copyright application.  It will be interesting to see how this case concludes, and the impact (if any) it will have on campaign advertising in 2012.

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