Latest Column: Fair Use, a Casualty of the 2012 Race

Obama_big_bird_250Big Bird is in the crosshairs of this year’s presidential campaign, but
the bigger victim may be the public’s perception of what is “fair use.”

The
owners of the Sesame Street character balked this week when President
Obama’s reelection campaign used his image in a brief clip in a snarky
campaign spot. Although Sesame Workshop asked the campaign to take it
down, that hasn’t happened yet, and the presumption is that this would
be another instance where their seconds-only use of the beloved avian
kidvid character is something that falls under fair-use doctrine.

Many
entertainment attorneys say that in this election cycle, the concept of
“fair use” has warped into a misreading by the public if not the
campaigns themselves.

The irony is that in recent years, musicians
like Jackson Browne, Don Henley and David Byrne have sued campaigns for
the use of their works, leading to favorable settlements or judgments,
but that has hardly stopped campaigns from using songs and clips without
permission.

“In light of the litigation, I don’t think you can be
a professional political operative and pretend not to understand about
intellectual property,” said Larry Iser of Kinsella Weitzman, who
represented Browne and Byrne. “It is too important to pretend you didn’t
know. What they have done now is use the words ‘fair use’ in order to
confuse the public as to what fair use is.”

Lawyer Bryan Sullivan
of Early Sullivan notes that fair use “was never meant to be a bar to a
lawsuit; it is meant to be a bar to recovery.”

One of the most
common misperceptions is that there is a set length of time that divides
when a use is fair and when it infringes.

Yet the U.S. Copyright
Office notes that the distinction between what is fair use and what is
infringement is “not always clear or easily defined. There is no
specific number of words, lines or notes that may be safely taken
without permission.” Section 107 of the Copyright Act does not go into
specifics, but says that among the factors in determining what is fair
use is “the amount and substantiality of the portion used in relation to
the copyrighted work as a whole.”

Iser also notes that Section
107 lays out the purposes for which a use is fair, including criticism
or comment. He argues that Sesame Workshop would have a case even for
the seconds-long clips of Big Bird because the criticism, i.e. parody,
is not of Big Bird or “Sesame Street,” but of Mitt Romney. In other
words, it is not commenting on the original work, but something else.
“While it is a case-by-case situation, it is very clear that if you are
going to use somebody’s copyrighted work for satire, the parody has to
be of that copyrighted work,” he argues.

This campaign also has
seen a fair share of back-and-forth over what falls into the “fair use”
category. In July, when the Romney campaign used a clip of Obama singing
a few bars of Al Green’s classic “Let’s Stay Together” at a public
event, YouTube removed it at the request of one of the copyright holders
but restored it after the Romney campaign argued that it was fair use.

Iser
actually sees fewer instances of campaigns using copyrighted music in
their spots this election, but what has created more stir this cycle
have been campaigns use of clips lifted from news broadcasts. Tom Brokaw
objected earlier this year when Mitt Romney’s campaign used footage
from a 1997 NBC News broadcast in an attack ad questioning Newt
Gingrich’s ethics. Bob Schieffer issued an on-air disclaimer when he was
featured in a Romney spot that featured a clip of him and ran during
“Face the Nation.” According to Politico, NBC News last week asked the
Obama campaign to stop using footage of Andrea Mitchell in a post-debate
campaign spot.

The use of such footage brings up the potential
for claims of trademark and false endorsement, though that raises a more
pragmatic question of whether it is a battle worth waging.

There’s also the matter of shelf life.

Sullivan,
who has advised campaigns and nonprofits to do a “risk assessment” in
judging what is fair use, knows the sentiment of political operatives in
the heat of campaign battles: “Better to ask for forgiveness than ask
for permission.”

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