Here we go: the first major copyright dispute of the 2012 elections

by Jarred Taylor

Last year, I wrote two posts describing the growing role that copyright is beginning to play in electoral politics.  The gist: using either the courts or the takedown process provided by the Digital Millennium Copyright Act, political campaigns are facing copyright claims against their political ads from content owners such as news outlets or musicians.

While court battles can take months or longer and pose little threat to the immediate political effects of disputed videos, the DMCA takedown regime takes a “shoot first ask later” approach — the platform provider (e.g. YouTube) must immediately remove any video that a content owner claims violates their copyright, and only upon a decision by the original poster to dispute the claim will the video be reinstated.  Reinstatement can take days or weeks, which is precious lost time in the heat of political battle.  Then, of course, the parties will likely proceed to costly litigation.

There were a few campaign ad copyright claims over the summer: for example, a claim by ABC Sports against the campaign of former candidate Tim Pawlenty for using footage of the famous 1980 “Miracle on Ice” American hockey victory without permission in a campaign ad.  But as we now approach the one-year mark until the election, and only a few months until the first primary ballots, it is inevitable that the campaign ads — especially attack ads — will multiply.  And what better way to attack an opponent than to show their gaffes from televised debates?

That’s exactly what Mitt Romney’s presidential campaign sought to do in its recent scathing web ad against competitor Rick Perry.  (Note: the video has since been officially retracted and removed by the Romney campaign.  The following is a copy of it captured by the American Bridge organization.)

Instead of suing or going through the DMCA takedown process, CNN approached the Romney campaign directly. The campaign decided to remove the ad, at first without explanation.  Later, the campaign had this to say:

“While the use of the CNN clips was fully within our rights under the law, we respect and appreciate the role CNN has played as host in debates over the last several months,” [campaign spokesman] Saul said. “For this reason, we are honoring their request to remove the video.”

The Romney campaign implies that its video was protected under the fair use doctrine, an affirmative defense to copyright infringement intended to strike a  balance between creative and free speech rights by permitting third parties to reuse copyrighted works in certain circumstances.  The fair use test weighs four factors: how transformative the new work is of the original; how creative the original work was; how much of the original was used in the new work; and whether the new work affects the market for the original.

The fair use test is very much a case-by-case analysis.  Looking at this ad, it is composed essentially entirely of audio and video clips from news organizations, including CNN and Fox News.  However, there is a strong argument that the ad is transformative because of the visual effects added and the use of the ad to politically attack rather than journalistically analyze; there is an equally strong argument that the original works were not very creative in that most simply captured discrete political events without substantive alteration or augmentation.  Very short clips of each original work were used to stitch together a narrative composed of dozens of individual clips, and it would be hard to argue that the campaign ad affects or substitutes for the news outlets’ original programming when such short and out-of-context moments are used.  It helps that the video includes clips from a variety of outlets and several different debates so as to avoid the claim — like that levied in the Carnahan case — that the ad consists of clips drawn from a single segment, anchored by a single journalist.

Of course, it is important to note that it is not unlikely that CNN is not motivated by copyright concerns at all, but rather concerns over false endorsement or viewer confusion.  As has been pointed out by the Center for Democracy & Technology (in reliance on scholarship by William & Mary’s own Professor Laura Heymann), these are not interests that copyright is designed to protect. Copyright seeks to protect economic rights in works so that creators can collect returns on their creative investment and thus be incentivized to produce more.  If CNN is not losing revenue or potential revenue, and is not disincentivized to continue its pursuits, then a copyright-based claim would be inappropriate.

It is good that CNN chose to approach the campaign instead of taking immediate legal action, although it is unclear whether CNN would have taken advantage of the DMCA or the courts if the campaign had refused to comply.  With so many Republican candidates left in the field, only a few months until the primaries, and the President beginning to spin up his own campaign, expect copyright to play a larger role than ever in the continuing battle for the White House.

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