Legal Experts Call Fox Complaints "Dubious" & "Strange"
Politico and Talking Points Memo reached out to legal experts for reaction to Fox News' complaints about the Robin Carnahan campaign, and there seems to be a consensus among their copyright law sources that Fox's is really reaching with their complaint.
Legal experts described Fox’s legal tactics as aggressive. Some said they believe that Fox’s suit was the first time a news organization actually sued a political campaign over its use of material from a news broadcast. In addition, while news organizations routinely fact check campaign commercials, Fox’s blunt description of the spot as a “smear ad” pushes the envelope.
While Fox’s suit claims a copyright violation, the network’s main objection is that Carnahan’s use of the video is misleading. However, a copyright suit is generally brought to recover lost revenue due to theft of intellectual property, not to help a firm preserve its image.
“Reputational damage is just not a cognizable copyright interest,” entertainment lawyer Ben Sheffner wrote on his Copyrights & Campaigns blog. He also called the notion that the ad implies that Fox or Wallace endorsed Carnahan “a dubious proposition.”
Sheffner, who worked on John McCain's presidential campaign and was involved in disputes the campaign had with other media companies over fair use issues in videos posted on YouTube, said it was a "pretty dramatic step" for a news organization to sue a political campaign...
While he understands their position, Sheffner said that is not what copyright law is intended to do. He said copyright disputes are about revenue, not about reputation damage.
"They make sort of a contradictory argument, they say oh you're depriving us of copyright revenue, but at the same time they're saying we would never license this to the campaign because they're using it for purposes which we disagree with," Sheffner said.
Late Update: Simon J. Frankel, a partner with the law firm Covington & Burling LLP, says that Fox News is making a "strange claim" in arguing that the use of footage from their network in a political ad reduces the economic value of their work product.
"Normally, copyright infringement is about unauthorized uses that reduce the economic value of the work," Frankel told TPM. Fox News, Frankel said, is arguing that "people wouldn't think well of your work rather than that it will harm the economic value. That's not usually copyright infringement."
While noting that he was unable to view the original clip, he said such use would "quite possibly be permissible fair use because you're using it for purposes of criticism."
Image credit: PCWorld.com
