Thursday, April 25, 2013
Deidre A. Keller, Ohio Northern University College of Law, is publishing '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, in volume 16 of the Vanderbilt Journal of Entertainment and Technology Law (2013). Here is the 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.
Download the full text of the article from SSRN at the link.