In the world of politics, a candidate has to do what a candidate has to do to get ahead. Sometimes, that means taking what are meant to be neutral statements and using them to the advantage of the campaign. Recently, Mitt Romney’s campaign was asked by NBC to stop using an advertisement “that consists almost entirely of old footage of its former news anchor, Tom Brokaw, reporting on Newt Gingrich’s legal troubles.” You can, as of the date of this writing, find the clip on Mr. Romney’s website.
The network’s lawyers said that the extensive use of the broadcast, approximately 30 seconds’ worth, constituted copyright infringement and exploited NBC’s and Mr. Brokaw’s journalistic integrity. The campaign has responded by stating that it believes its use of a 30-second clip out of the entire broadcast constitutes fair use.
Fair use is defined by the Copyright Act’s Section 107. Section 107 states that for certain purposes, including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” copying and making use of other rights granted to copyright holders do not constitute infringement. It sets forth four factors for determining whether a particular use is fair use or not:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The federal courts have not ruled on whether or not the use of news clips by political campaigns constitutes fair use, nor have they been willing to commit to a set length or ratio to determine the quantity of copying that would take users out of the realm of fair use. What may be the most interesting question in this situation, however, is how the courts would rule on the fourth factor of the fair use test, the effect of the use on the potential market for or value of the copyrighted work. One of the most important cases addressing this factor was Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). There, the U.S. Supreme Court stated that the fourth factor “requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market’ for the original.” The courts have not determined whether harm the reputation of the original work via a non-parody derivative work, which may in turn harm the market for both the original and any subsequent broadcasts, is a cognizable harm in the world of copyright. It may be a poor choice to make it such, as there are other claims a plaintiff could bring in this area, such as trademark dilution or some variety of implied defamation. However, as a media outlet, NBC will likely tread carefully when it comes to trying to place limits on the free speech of others.
What do you think? Does the Romney campaign’s use of the clip constitute fair use?