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Copyright Law and Political Ads

October 30th, 2006

The Seattle Times has an editorial today that has finally pushed me into writing something about the intersection of copyright and political advertisement. For those of you who don’t wish to read the article, it’s a piece from the Times’ Editorial Board calling on Darcy Burner to renounce an ad put out by the DCCC. The add uses a snippet from a TVW broadcast where Rep. Dave Reichert (R) said sometimes he listed to the GOP leadership and sometimes he doesn’t. Unfortunately for him, he said it such that a little pruning makes it sound like he’s a GOP waterboy.

But the Editorial is not just upset about the careful choice of words, they are upset because it infringes upon the copyright of WTV. So the obvious question is, does it? I haven’t done a ton of research on the topic, but my gut says copyright is not an issue here.

First, the footage is being used in a political ad, which means it has ample First Amendment protection (in fact, as political speech it has the most First Amendment protection of all other speech). Second, while TVW isn’t a governmental entity, it is a 501 (c)(3) non-profit corporation (meaning it has to be for the public good) and it receives nearly 100% of all funding from the Washington State government. Third, the footage is of a public official making public commentary, which means his words and appearance are newsworthy. There has always been an exception to copyright when the news is at stake (see INS v. AP… although the law is muddled here).

There was a Washington Post editorial a few years back about how President Bush rarely gives press conferences, choosing instead to do one-on-one interviews with private news outlets (CBS, NBC, ABC, FOX, etc). As a result, historical snafus on camera become the private copyright of the company which can be forced out of circulation by the White House by threatening to never grant another exclusive interview.

Thankfully Bush has been giving more press conferences of late, so this issue never really matured. But imagine, for a moment, if it did. Would the courts actually uphold a copyright infringement case against a political organization for using footage in an effort to broaden political discourse? I’m fairly certain that was not the purpose of copyright law.

In fact, the Times’ Board shot itself in the foot with the following line.

Rather, it is about the use of copyrighted TVW footage without permission, which would never have been granted in this case.

The purpose of the copyright is to ensure those who take the effort to make the copy are properly compensated. To say that the owner of the copyright would refuse the request, even if properly compensated, means the copyright law is being abused.

…and I’m not even going to talk about fair use.

One more thought on this topic regarding YouTube. I’ve been reading some election blogs which have taken to distributing political ads, and their unique commentary, via the popular video sharing service. This is often the only way to see footage of ads which have been pulled from the air for reasons like embarrassing the candidate, provoking public outrage, spreading untruths, being stupid. These ads live on via YouTube, reviewed and distributed among the political junkies.

Are they legit? First analysis says it’s copyright infringement. They aren’t copying a few seconds, they are taking the whole kitten-kaboodle. No obvious fair use defense here. But it is political commentary, so it has the whole political speech component. Also, you’ve got the fact that the distribution is done by private individuals, so the initial producers (the one who pulled the ad in the first place) can claim its not their fault while continuing to get a little bang for their buck on an ad they were forced to pull off the air.

Which means that politics and market forces are going to be more important than the law, but it’s still an interesting question.

probonogeek Law, Politics

  1. Anonymous
    October 30th, 2006 at 20:30 | #1

    There are a few issues you are missing here. The editorial is not referring to the legal aspects of copyright law. It is appealing to the dignity of the candidate. TVW is a non profit public service in Washington State that seeks to keep the public informed, like CSPAN. And much like CSPAN, it has set up “rules” about their broadcasts so that they will not be manipulated or used in political ads. What the DCCC has done in running that ad in the Seattle media market has ruined the credibility of TVW who are seeminly powerless to stop it. This will stop candidates in both parties from allowing TVW to film their events. TVW has a bipartisan board who are outraged by this incident. The editorial comes from the fact that the candidate who did not the ad but benefits from it – Darcy Burner – refused to show leadership and agree that the ad should be taken down. Never mind that the ad uses the old “cut off the tape at the right moment” trick to falsely accuse someone of something. This puts her at odds with Rs and Ds alike who have worked very hard in WA to create and defend the state’s CSPAN, TVW. As for the issue of politicians trying to avoid the cameras, who can blame them when stuff like this happens? Certainly Darcy Burner knew enough to block voters from seeing her at public events:

  2. Sean Kellogg
    October 30th, 2006 at 20:53 | #2

    anonymous… I don’t condone the ad, nor do I condone the general tactic. However, when it comes to political speech I believe the cure is more speech, not the threat of judicial intervention.

    Voters are welcome to punish Burner (who, incidentally, I went to Law School with) for refusing to denounce the ad… but the editorials main thrust is that copyrights are being violated and I just don’t think that’s the situation here.

    As for allowing TVW cameras into political events… well, that’s a long running issue with both parties and more a product of what viewers reward/punish TV stations for airing. If viewers were more interested in hearing our leaders speak of hope instead of watching them make fools of themselves, I think we’d see quite a shift in the dynamic of public access.

  3. srcastic
    October 31st, 2006 at 04:26 | #3

    Sean, I couldn’t agree with you more. While I generally don’t think that copyrighted works should be used to advance one’s political campaign without permission, when it is footage, edited or not, of an elected official (or candidate for office) speaking on their political positions, that is no place for copyright law to interfere. It is absolutely outrageous that the public statements of what our elected officials say could be so removed from the public debate.

  4. nick peyton
    November 2nd, 2006 at 03:00 | #4

    Sean Kellogg, I was thinking of you today. It is about two weeks away from that damned NAGPS conference, Adam is off living life off $20,000 and I was taking a check to Kane Hall to pay for a room. I just wanted to say that I know we had our differences at GPSS, but when shit went down, you always had my back, even if you didn’t believe it to be the wisest thing. You made sure that I understood and you would back me up. There should be more people like you in workplaces. Someone who will challenge but at the end of the day back you up. So thanks for that. Your blog could use some more random rants about life and less legal stuff, but I guess it is “‘probono’geek.” Keep on keeping on. Peace

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