Journalists have been unable to stop candidates from using copyrighted news clips in campaign ads, but maybe “Sesame Street” can. Ever since Mitt Romney said during last week’s debate that he would cut federal funding to PBS even though “I love Big Bird” — a sentiment he repeated Tuesday night — the Obama campaign has been attacking.
“Sesame Workshop is a nonpartisan, nonprofit organization and we do not endorse candidates or participate in political campaigns. We have approved no campaign ads, and, as is our general practice, have requested that both campaigns remove Sesame Street characters and trademarks from their campaign materials.”
Using Big Bird in an ad may present different legal issues than using a network anchor, said Alison Steele, a lawyer who represents The Poynter Institute and the Tampa Bay Times. Unlike a journalist, the character “is the intellectual property of a not-for-profit, IRS qualified 501(c)(3) and as such there are legal issues with its being involved, or the appearance of its involvement, in partisan political campaign activity,” Steele said by email.
The Obama campaign said it is considering Sesame Workshop’s request to remove Big Bird from the ad.
“The idea was to provoke a discussion and create a little viral activity, and we’ve done that,” strategist David Axelrod told The New York Times.
Big Bird might find solace in the fact that even the heads of big news networks can’t make the candidates back off.
Monday night, at the Edward R. Murrow Awards ceremony, NBC News President Steve Capus asked both campaigns to stop using clips from newscasts in their ads.
While we’re hard at work telling the story of the election, I’d like to take a minute — and I think you’ll enjoy this part — to urge the candidates and campaigns to do a better job of telling their own story. In this election cycle, we have seen the campaigns take advantage of and misrepresent journalists in their advertisements, pulling short soundbites and in some cases, taking that reporting out of context for the sake of driving a different message. NBC News has dealt with this issue with both candidates, and this has to stop.
It’s not fair for our journalists and producers and it’s not fair to our citizens and it’s just lazy. I know that campaigns want to be associated with Tom Brokaw and Andrea Mitchell and Brian Williams in their commercials. But let’s be honest. That’s good company, but those folks are journalists and they do not endorse this message. Tonight, while I’m among all of my colleagues and acquaintances, I’d encourage all of you to join us in this effort to ask the campaigns to stop — respectfully — ask them to stop using news material in their advertising.
(Editor’s Note: This is about 4 minutes in to the video below)
Capus mentioned the January 2012 dust-up that NBC had with the Romney campaign, when the GOP nominee ran an ad featuring former NBC anchor Tom Brokaw reporting on the 1997 ethics problems that then House Speaker Newt Gingrich faced. The ad (below) showed Brokaw talking, with no announcer voice-over.
Romney defended the ad at the time, saying:
This was the news from the night the Speaker was sanctioned and reprimanded by his own members. And so people heard the news, they didn’t hear it filtered, it was just straight on, no heavy music that suggested some kind of sinister background. Instead just Tom Brokaw, a very credible and respected journalist, reporting the news. I think it was pretty devastating. It pointed out that what Speaker Gingrich has been trying to hide is now out in the open.
By one estimate, the ad aired 2,225 times despite Brokaw’s and NBC’s protests.
This week, President Obama’s campaign attacked the Romney tax plan by co-opting an NBC report featuring Andrea Mitchell:
Why do they do this?
“When people see political ads, they think someone’s lying to them,” said Mark McKinnon, an ad maker who worked with Mr. Rove on both of George W. Bush’s winning presidential campaigns.
“We try really hard to get credible third-party messengers to deliver facts,” Mr. McKinnon explained. “A fact coming from you is much more believable than a fact coming from us.”
It is also cheap and easy to use a clip from TV or YouTube. There is no need to rent a studio or an actor. And the ads can come together quickly. They are particularly devastating when the ads are timed to a hot topic, like whether Big Bird will lose his funding.
How do they get away with this?
Campaigns tiptoe around copyright and fair-use questions all the time.
- Ronald Reagan’s campaign became associated with Bruce Springsteen‘s “Born in the USA,” but Bob Dole ran into trouble with Springsteen when he tried to use the same song in his 1996 campaign.
- Sarah Palin heard complaints of intellectual property infringement when her campaign played the Heart song “Barracuda” at rallies.
- The country music duo Brooks and Dunn found themselves in a tight spot when both Republicans and Democrats used one of their songs.
Copyright is one issue. The copyright holder must grant the license to the user for the work to appear in an ad. But the Supreme Court has said time and again that the most free speech of all, the speech that has to have the most protection, is political speech.
Because political advertising appears to represent the ultimate exercise of constitutionally protected free speech, campaigns may be tempted to believe that it is beyond the reach of intellectual property law. After all, it is well settled that “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” (Eu v. San Francisco County Democratic Council Comm., 489 U.S. 214, 223 (1989), quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).) Political speech has been declared “at the core of the First Amendment” (Boos v. Barry, 485 U.S. 312, 318 (1988)), which has also been deemed to reflect a “profound national commitment” that “debate on public issues should be uninhibited, robust, and wide-open” (New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
Does that mean that as long as it is political speech, you can trample copyright protections? Certainly not. Even political speech would not be protected if a campaign used an entire copyrighted work.
For example, if Romney had used an entire network newscast or special about Gingrich, he could have had a problem. If Obama’s Big Bird ad used a whole skit, it would be an infringement.
Who started it?
Newspapers and TV networks can thank Hustler Magazine’s Larry Flynt for the proliferation of ads that include newspaper headlines and newscast clips. It was in the 1985 case of Hustler v. The Moral Majority that the Federal District Court in California ruled:
“Although the First Amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use.” (Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526, 1536 (C.D. Cal. 1985).)
So the court held that the mailings and television use were permissible under the “fair use doctrine.” It is worth noting that Flynt was generally on the side of free speech and fair use in other court cases, but this time, Flynt sued the religious group for using copyrighted material attacking him, and he lost.
What is fair use?
Generally there is a four-step test to determine if a campaign can use a copyrighted work under fair use. The questions are:
- Is the work bona fide news? Facts can be commonly attained, fiction is created and more closely protected.
- What is the purpose of using the copyrighted material? Is it being used for education? For a non-profit cause? In this case, one could argue it is being used to educate voters about a critical matter, which could fall under fair use.
- How much of the copyrighted work is used? Is it a soundbite, a music clip a photo that was part of a large collection of photos? Is it a quote or newspaper headline? Or is the campaign reprinting a 5,000-word article? The shorter the selection, the more likely it is considered fair use.
- In what way does the infringement harm the copyright holder’s ability to make money from the work? If NBC News could prove, for example, that the infringement caused ratings to drop or advertisers to jump ship, it might have a case.
Short of that, journalists would do well to explain when a candidate misrepresents news content in their ads. We have seen ads that used newspaper headlines attributed to major publications that were not from news articles, but from editorials. We have seen ads that edit out the context of what a candidate says and in so doing creates a whole new and untrue narrative.
The campaigns are confusing voters and in the process are undermining the credibility of journalism at a time when we don’t need more of either. I would like to see the candidates take a pledge to knock it off. We have a VP debate coming up Thursday night. I hope the question comes up.