[EL] Interesting new article on campaign ad uses of news footage

[Ben Sheffner]

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2243992

'What He Said...': The Transformative Potential of the Use of Copyrighted
Content in Political Campaigns, or, How a Win for Mitt Romney Might Have
Been a Victory for Free Speech

Deidre A. Keller
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1502365>
Ohio Northern University - Ohio Northern University College of Law

March 25, 2013

*16 Vand. J. Ent. & Tech. L. ___ (2013, Forthcoming)*

*Abstract: *
In January 2012 Mitt Romney’s campaign received a cease and desist letter
from NBC charging that use of news footage casting opponent Newt Gingrich
in a negative light constituted a copyright violation, violation of the
right of publicity of the news anchor (Tom Brokaw), and false endorsement
under the Lanham Act. This is just latest such charge and came amidst
similar allegations against Gingrich and Bachmann during the primary season
and in the wake of similar allegations against both the McCain and Obama
campaigns in 2008. In fact, such allegations have plagued political
campaigns as far back as Reagan’s in 1984.

The existing literature considering such allegations in the context of
political campaigns is almost entirely devoid of a consideration of the
uses in question as political speech, protected by the First Amendment.
Rather, scholars tend to consider only whether such uses constitute fair
use. Courts have considered this question very rarely and tend to limit
their consideration to the fair use issue as well. Because these cases
rarely progress to decisions, there is little to be said of the way courts
handle these issues but much to be said about the way courts ought to. This
piece endeavors to engage in the thought experiment of laying out the
analysis a court ought to engage in in the case that will never be
concerning the Romney/NBC dispute. Ultimately, the piece will argue that in
these circumstances, where the copyrighted content is marshaled in
advancing a political message, copyright ought to yield to the First
Amendment despite prior jurisprudence indicating that copyright
infringement cases are largely exempt from First Amendment scrutiny.
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