Fox News Took ‘Dramatic Step’ In Suing Political Campaign, Says Copyright Expert

September 16, 2010 12:54 p.m.

Fox News’ decision to sue a Democratic candidate over her campaign’s use of footage first aired on the network in an ad is an apparent escalation of such fair use battles — bringing disputes between media companies and campaigns from YouTube to the courtroom.

The suit the network filed against the campaign of Robin Carnahan, a Democrat challenging Rep. Roy Blunt (R) for a Senate seat in Missouri, appears to be the first time such a fair use fight between a media company and a political campaign has been taken to court. It is much more common for media companies to flag the videos to YouTube and assert their copyright.“This is the only case that I know of where a broadcast news organization has sued a political campaign over use of news footage in an ad,” Ben Sheffner, a lawyer who specializes in copyright issues and writes the Copyrights & Campaigns blog, told TPM. “There’s been a number of disputes over this issue, but they never got to a court case, that I’m aware.”

Fox News said in a statement to TPM that they filed the suit to protect the journalistic integrity of their host.

“We filed this lawsuit because we cannot allow it to appear as though Chris Wallace is endorsing any candidate. While we appreciate the campaign’s willingness to remove the ad from the web, we’ve also asked that the ad not be used on TV,” Chris Silvestri, senior vice president of legal and business affairs for Fox News, said in a statement. Spokeswoman Dana Klinghoffer declined to answer additional questions.

Linden Zakula, a spokesman for the Carnahan campaign, told TPM that they are standing by the advertisement and said Carnahan will continue hitting the issue addressed in the ad — the allegation that Blunt attempted to slip a secret provision into the Homeland Security Act which would benefit Philip Morris while he was dating a lobbyist for the company.

“It’s unclear why Fox News refuses to stand by its own content that simply asked questions about Congressman Blunt’s Washington record and ties to convicted felon lobbyist Jack Abramoff,” Zakula said in a statement. The Blunt campaign did not immediately provide a comment on the lawsuit.

Sheffner, who worked on John McCain’s presidential campaign and was involved in disputes the campaign had with other media companies over fair use issues in videos posted on YouTube, said it was a “pretty dramatic step” for a news organization to sue a political campaign.

“Most of these things are resolved by basically sending a take-down notice to YouTube or other similar sites,” Sheffner said. “We had used very, very short clips, actually much shorter than the ones at issue here, and in our correspondence with the news organizations, it quickly became clear that the news organizations concerns were not typical copyright concerns… they took the position that ‘hey, we’re an unbiased news organization and you — a partisan campaign — should not be allowed to use our news material for your partisan ends’.”

While he understands their position, Sheffner said that is not what copyright law is intended to do. He said copyright disputes are about revenue, not about reputation damage.

“They make sort of a contradictory argument, they say oh you’re depriving us of copyright revenue, but at the same time they’re saying we would never license this to the campaign because they’re using it for purposes which we disagree with,” Sheffner said.

Late Update: Simon J. Frankel, a partner with the law firm Covington & Burling LLP, says that Fox News is making a “strange claim” in arguing that the use of footage from their network in a political ad reduces the economic value of their work product.

“Normally, copyright infringement is about unauthorized uses that reduce the economic value of the work,” Frankel told TPM. Fox News, Frankel said, is arguing that “people wouldn’t think well of your work rather than that it will harm the economic value. That’s not usually copyright infringement.”

While noting that he was unable to view the original clip, he said such use would “quite possibly be permissible fair use because you’re using it for purposes of criticism.”

As a hypothetical example, Frankel pointed to Karl Rove’s appearance on Fox News last night in which Rove criticized Christine O’Donnell, the GOP nominee for Senate in Delaware, which O’Donnell’s opponent could try to use in a political ad.

“It’s significant if it’s Fox because it’s conservative,” Frankel said. O’Donnell’s political opponent might want to use the Rove clip “to say ‘look even the people at Fox News think she’s nuts’,” Frankel added.

There is a distinction between Fox’s argument that the Carnahan clip implies the network is endorsing a candidate, which Frankel said could be a fair concern, and just pointing out criticism by the network, would fall under fair use, Frankel said.

Recent court decisions on cases brought by musicians have held that political campaigns cannot use songs without obtaining the proper licensing. But the Carnahan suit, which deals with journalistic work product, deals with a different question than this case, Frankel said. He also noted that the length of the clip used would also likely play a role in how the case plays out in court.

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