Copyright Infringement on the Campaign Trail

It’s not just the “very poor” who are ticked off at Mitt Romney these days. NBC has got a beef with him as well.


Mitt’s got a TV ad out in which he uses a clip from NBC’s Nightly News, circa 1997. The clip shows Tom Brokaw reporting that Newt Gingrich was found guilty of various ethics violations.


The ad carries the banner “Paid for by Romney for President, Inc. Approved by Mitt Romney.”


But it doesn’t say licensed by Mitt Romney or used with permission by Mitt Romney. And it doesn’t say “approved by NBC.”


NBC, it seems, is not pleased about this. It has insisted that Romney remove NBC’s copyrighted material from the ad, or face a claim for copyright infringement.


And that’s not all. NBC is also threatening a claim for false endorsement, false designation of origin under the Lanham Act, and (on behalf of Mr. Brokaw) a claim for misappropriation of name and likeness.


I like NBC. If I had a TV, I’d definitely watch their station. My hat’s off to their legal team.


Mr. Romney might have said “I’m not concerned about the Copyright Act.” Or “I’m not concerned about the very [NBC].” His campaign apparently intends to continue running the ad. They’ve taken the position that their use of the news clip falls within the “fair use” doctrine.


Really?


Let’s review: 17 U.S.C. § 107 provides that the “fair use" of a copyrighted work “is not an infringement of copyright," but making the determination as to whether “fair use” applies is a case-by-case analysis.


Generally speaking, in determining whether the fair use defense applies, courts consider “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107.


Those factors don’t necessarily bode in favor of the Romney campaign. But then again, maybe what it means by “fair use” is that the Gingrich campaign also engaged in copyright infringement!


You see, Gingrich was sued this week by a former member of the band Survivor for his use of the song “Eye of the Tiger” at campaign events.


Opps. Can’t do that? Public performance? Who knew?


So maybe that’s Romney’s “fair use” defense. Of course, that’s really less of “fair use” and more of a “well he did it!”


But if Romney takes that approach, he’d might also want to pick a couple more wives. Just to make the teams even.


In any event, it helps to know that the leading contenders for the Republican presidential nomination are well versed in copyright laws.


Hint to Romney and Gingrich: it helps to hire a lawyer before using other people’s work. That is, unless the copyright owners are very poor, in which case, we know what Mitt has to say about that.



Jonathan Pink is a copyright and trademark lawyer in the Los Angeles and Orange County offices of Bryan Cave, LLP. His practice focuses on intellectual property and commercial litigation, including arts and entertainment, technology and Internet-related matters. He cam be reached at jonathan.pink@bryancave.com.