Carnahan's lawyers filed a document in support of their a motion to dismiss the case in U.S. district court for the Western District of Missouri arguing that the suit should be dismissed because "Fox Network has failed to meet, and cannot meet, the statutory precondition for a copyright infringement lawsuit."
The lawyers argued the campaign's use of a clip from Wallace's 2006 interview with Blunt constituted fair use. They also argued that Fox News only filed a copyright notice on Sept 20, five days after Fox first filed the suit.
"It is essential for a proper copyright registration to distinguish between the copyright claimant's original creative work, for which copyright can be claimed, and pre-existing works of others, for which the claimant has no right and may not assert infringement," lawyers for the Carnahan campaign write in support of dismissing the case.
"The Carnahan Campaign believes that certain creative content contained on approximately half of the 24-second clip does not fall within the Fox Network's copyright claim," they added in the suit. "Specifically, for about one-half of the length of the clip used, the only photographic material portrayed is a photograph of Rep. Blunt that appears to have been taken from C-SPAN footage of the floor of the House of Representative, which, by virtue of C-SPAN's contract with the House, is a public domain photograph."
The ad continued to run after the suit was filed, but court documents say the Carnahan campaign is no longer using the advertisements.