Thursday, September 16, 2010

Fox news and correspondent sue Senate candidate over use of news footage in ad

Fox News and its correspondent Chris Wallace have sued the campaign of Senate Candidate Robin Carnahan (D-MO) over her campaign's use of Fox footage in a TV ad attacking her opponent, Roy Blunt (R). As first reported by THR, Esq., the complaint, filed in the Western District of Missouri on Wednesday, alleges copyright infringement and two forms of violation of Wallace's right of publicity under Missouri law.

The campaign ad has been removed from Carnahan's web site and YouTube, so unfortunately I can't independently evaluate it. (Update: here it is, at least for now.) But the complaint alleges that it was a "smear ad" that falsely implies that Fox and Wallace endorsed Carnahan's campaign. The complaint says that the 32-second ad uses "an essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary appropriated from" an interview Wallace conducted with Blunt in 2006. The complaint also seems to say that the Fox footage included in the Carnahan ad included only Wallace's questions -- but not Blunt's answers:
The defendant’s conduct in stealing only certain footage from the [Fox] Interview is also false and misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations were not.

The Kansas City Star described the ad as follows:

“You have to show you’re the party of reform,” Wallace says to Blunt in the clip, as it’s replayed on the Carnahan ad. “But some question whether you are the man to do that.”

The screen than flashes examples from Blunt’s political and congressional career, including his insertion of legislation in a Homeland Security bill that would have helped tobacco maker Philip Morris.

Without having seen the ad myself, I'm not going to offer an opinion on the ultimate merits of the suit. But I do have a bit of skepticism about the copyright claim, for at least two reasons. First, the complaint repeatedly emphasizes the alleged reputational damage to Fox for use of the footage. Even assuming that the ad does falsely imply that Fox and/or Wallace are endorsing Democrat Carnahan (a dubious proposition, it seems to me), reputational damage is just not a cognizable copyright interest. And second, the complaint asserts that the campaign's use of the Fox footage "allows Defendant to profit commercially without paying the traditional price." But that statement appears to contradict the thrust of the complaint, which is that Fox would never license such footage to a campaign, because it would damage its reputation. In other words, there is no "price" here, "traditional" or otherwise. Moreover, courts have rejected the argument that campaign uses of third-party material are "commercial" simply because they are used to solicit contributions. See American Family Life Insurance Co. v. Hagan, 266 F. Supp. 2d 682, 697 (N.D. Ohio 2002) (use of trademark in a political campaign ad was “properly classified not as a commercial transaction at all, but completely noncommercial, political speech”); MasterCard International Inc. v. Nader 2000 Primary Committee, Inc., 2004 WL 434404 (S.D.N.Y. Mar. 8, 2004) (even if a candidate’s ad resulted in increased contributions, the ad would still not be “commercial;” “If so . . . all political campaign speech would also be ‘commercial speech’ since all political candidates collect contributions”).

As for the right of publicity claims, I am not familiar enough with the specifics of Missouri law to say anything too definite. I would just point out that courts are very protective of First Amendment interests in the political context, see, e.g., Meyer v. Grant, 486 US 414 (1988) (First Amendment interests are "at its zenith" in the political realm), and there are strong arguments for limiting right of publicity claims to truly commercial uses of an individual's name and likeness.

(Updated with additional detail about the ad.)


  1. Why isn't this the same as the McCain campaign's use of "Runnin' on Empty" or the DeVore campaign's use of "Boys of Summer" and "All She Wants to Do is Dance?"

  2. I agree. There is a different commercial vs. noncommercial argument concerning publicity rights and trademark than there is for copyright and also how that determination plays into the decision of whether there is a fair use defense. You might be able to defend the use of the clip as fair use from a copyright standpoint, but you have to go through the four prongs. Even newspapers have to license the photos they use to accompany their stories, and that's not commercial.


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