The Fox News Channel has sent a cease-and-desist letter to John McCain’s presidential campaign demanding that he stop airing a new commercial because it uses footage from a recent Republican candidates’ debate sponsored by Fox News. (You can view the ad, entitled “Tied Up,” on McCain’s site here). The Fox News logo is visible in the bottom corner of the screen. The two sides’ positions, according to the New York Times:
… lawyers for Mr. McCain say they are within their “fair use” rights to use the clip of their candidate talking for 19 seconds of a 90-minute debate. Fox’s lawyers say “fair use” does not apply to commercial use and that Mr. McCain’s campaign has no substantive legal defense.
Do the Fox lawyers live in Opposite Land? The fair use doctrine unquestionably applies to commercial uses. More fundamentally, a political commercial is not a “commercial use” in any relevant sense, despite the fact that one can use that same word “commercial” to describe it. Furthermore, McCain’s use is transformative, it uses only a small clip, and it has minimal market effect.
This is yet another example of a grossly overreaching C&D intruding into the arena of political speech. Fox News, of course, has a history with those. I wrote a while back about an even sillier C&D threatening another campaign video (coincidentally, like McCain’s ad, an anti-Hillary Clinton message). Simultaneously, this dispute is yet another indication that the effort of Larry Lessig and others to “free the debates” was and remains vitally important.
If this case were ever litigated (which seems unlikely), McCain would win — both because he is correct on the legal merits and because I think a court will bend over backwards to avoid constraining core political speech this way (as also happened in the Ralph Nader Mastercard case and the AFLAC lawsuit to protect its annoying duck from making a cameo in an online campaign commercial).
[UPDATES: (1) Lessig is less sanguine about McCain’s arguments. (2) Cathy asks in the comments below how come Fox owns the copyright in McCain’s own words? Many a rock band and scholarly author has confronted the same issue: intermediaries rather than creators often own the copyrights. And sometimes that’s even OK. Also: were McCain’s comments fixed in a tangible medium beforehand?]