No easy answers for fair use questions

Obama's Big Bird ad is latest campaign spot to raise copyright hackles

Big 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.”