“Friday Night Lights” Slogan: Romney Critics May Have a Cause, But Not a Case

A star of “Friday Night Lights” and an executive producer wrote an op-ed in today’s USA Today to object to the way that Mitt Romney’s campaign has been using a slogan from the show in his campaign. They are among a number of show biz figures who are stepping into the fray to protect their intellectual property, or those of their co-workers. But are their efforts genuine attempts to protect their creations, or misusing copyright law to stifle speech. That’s the topic of my latest column in the print version of Variety, which you can read below.

Tedcol281Politicians like to use popular songs and slogans in their campaigns,
and artists often feel helpless when even a portion of their work is
used without permission — especially by a candidate they oppose. On the
other side, politicos are suspicious that the copyright claim is just
an excuse to stifle their messaging.

Though both sides may squawk,
the world of campaigns is so fast-moving that by the time both sides
have aired their grievances, the candidate has moved on to a new
election tactic. So a big-picture legal resolution is unlikely. And, as
one lawyer says, “There is a fine line between free speech rights and
copyright.”

One of the more high-profile flaps was launched
when”Friday Night Lights” executive producer Peter Berg sent Mitt
Romney’s campaign a letter asking them to stop using one of the show’s
signature catchphrases — “Clear Eyes, Full Hearts, Can’t Lose.”Berg got
no response, but perhaps a shrug: The campaign offered donors a rubber
bracelet that featured a slight variation of the phrase.

Copyright law experts are skeptical whether Berg or the series producer, NBCUniversal, has much of a legal claim.

The
disputes this cycle pale in comparison to those in the last
presidential race, when a high-profile suit filed by Jackson Browne over
the use of his music in Republican campaign spots led to a hefty
settlement and apology from the Republican National Committee. But the
2012 battles are no less important to the issues over copyright.

During
the summer, Mitt Romney’s campaign produced a web ad including a clip
of President Obama singing a few bars from Al Green’s “Let’s Stay
Together.” BMG Rights Management, representing the songwriters, asked
YouTube to take down the video. When the website agreed, the Romney
campaign quickly complained that it was fair use.

Some suspected
that the move was instigated by Green, who is an ardent Obama supporter.
But BMG said the takedown request was issued by the estate of one of
the co-authors of the music, Al Jackson Jr., whose family said that they
did “not wish his legacy to be associated with political ads by either
candidate.”

YouTube restored the video, apparently siding with
the Romney campaign. “We also reinstate videos in cases where we are
confident that the material is not infringing, or where there is abuse
of our copyright tools,” YouTube said at the time.

As of last week, the video was still posted.

Digital-rights
advocates say such episodes point to misuse of the copyright system,
especially when it comes to YouTube. Under the “safe harbor” provisions
of the Digital Millennium Copyright Act, YouTube and other
user-generated sites are shielded from liability if it promptly removes
infringing content, which it does via a Content ID system and when it
gets a takedown notice from the copyright holder.

It also has a
counter notification process in which a campaign can appeal — and
although the Romney campaign video was restored within days, the process
can take a week or more.

The trouble for a fast-moving election
campaign is that by the time a video is restored, the message often has
changed. In a study of abuse of the takedown process in the 2008
campaign, the Center for Democracy & Technology noted that in a
campaign, “10 business days can be a lifetime, and the removal of
important and timely non-infringing campaign videos for such a period
can reduce their effectiveness and potentially impact an election. In
other words, the damage is often done by the time a video can be put
back online.”

Yet for the artist who wants to stay apolitical, or
who sees their work used by a candidate with alternate stripes, there
can be a genuine worry that it will seem an implicit endorsement,
particularly if it becomes a campaign theme.

The power of
publicity can sometimes force a campaign’s hand, saving the expense of a
legal fight. That was the case with Bobby McFerrin, who had the hit
“Don’t Worry, Be Happy” in 1988 but was unhappy when the campaign of
George H.W. Bush started using it at events. After McFerrin’s outcry, in
which he even dropped it from his own playlist, the campaign eventually
stopped using the song.

The concern of false endorsement, in fact, can be greater than the concern over infringement.

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