Over the weekend, the Obama campaign came out with an ad, “Firms,” that featured the voice of Mitt Romney singing “America the Beautiful” while slamming the candidate for outsourcing. Then the Romney campaign followed that up with its own version of a candidate, this time Obama singing Al Green’s “Let’s Stay Together.”
“America the Beautiful” is in the public domain; “Let’s Stay Together” isn’t. And this afternoon the Romney campaign’s spot, mocking Obama’s lyrical prowess, was taken down with the notice, “This video is no longer available due to a copyright claim by BMG_Rights_Management.” The ad was posted on the Romney campaign’s site, and is titled “Political Payoffs and Middle Class Layoffs.” It was meant to tie Obama to upper income elites, as he sang at a fundraiser at the Apollo theater in January.
A spokeswoman for BMG could not immediately be reached.
The Romney campaign has argued that its use of clips — of journalists and, in this case, musician lyrics — is “fair use.” “Our use was 100% proper, under fair use, and we plan to defend ourselves,” said one campaign source.
Green is an Obama supporter, and, after the President sang the lyrics and sales of the recording shot up, the singer performed at a campaign fundraiser.
The Center for Democracy and Technology in 2010 did a report on “abusive” takedowns during campaigns, concluding that “short clips in political advertising should in many cases be permitted under copyrightʼs ‘fair use’ exception. Fair use permits the use of a copyrighted work for purposes such as ‘criticism’ or ‘comment,’ subject to a four-factor balancing test that is applied on a case-by-case, fact-specific basis.” Among them is the issue how how “transformative” the work is. Courts have given even more leeway to “fair use” when it has to do with issues of public concern, the study noted, which is why “The Daily Show with Jon Stewart” gets away with using so much embarrassing material from the cable news networks without first obtaining permission.
The Obama campaign’s ad is below.
Also, below is AP coverage of Obama singing Green, which remains on YouTube. Conservative bloggers and reporters are questioning why this version has not also been pulled. Musicians have a history of allowing their songs to be used by politicians they favor — which in the music business tend to be those on the left — while being diligent about pursuing copyright claims against politicians they are against. They also have pursued false endorsement claims, although it is hard to see how that would apply in this case.