Fox News v. McCain on Fair Use

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?]

6 Responses to “Fox News v. McCain on Fair Use”

  1. If McCain is also showing clips of himself speaking, does (or how much does) Fox actually have a copyright claim in it anyway? After all, it seems like all the authorship would have been McCain’s, with very little (if any) by Fox.

    In fact, because it was a public, political speech, what Fox recorded seems more akin to a vendor compiling a phonebook with public facts than a fixation of an expression of any particular originality on its part.

  2. Cathy:

    Thanks for the comment! I’m not sure if the fact that McCain is (mostly) showing footage of himself adds much to his legal fair use argument.

    If he instead showed footage of an opponent in a debate as a way to attack what his opponent said, would and should the fair use argument be harder? I don’t think so. The fair use claim should be strong either way.

    Creators hand over their copyrights to intermediaries all the time — publishers or record labels, for instance. And we want to retain their capacity to do so. Intermediaries that serve important purposes might understandably demand exclusivity as a condition because they need it to make a profit — if you distribute your own work in competition with them, you cut into their profit. (Of course, if you are not affecting the market, that might be a fair use under the statute).

    Incidentally, I imagaine McCain’s extemporaneous oral remarks might not have been fixed in advance and so he might not have any copyright in them (although some of his one-liners sure sounded pre-planned!).

  3. Creators hand over their copyrights to intermediaries all the time

    Yes, but not without the satisfying-the-statute-of-frauds requirement of a writing. Copyrights are not inadvertently transferable.

    Fox could probably claim that it had an implied license to fix McCain’s words and use the fixation for its own purposes, but I still can’t see how it could possibly claim to have a copyright in them. And without there being any, there’s no need to even reach the fair use argument at all since there can be no infringement for fair use to justify.

  4. My personal feeling is that the fact that McCain is (mostly) showing footage of himself detracts from his fair use argument. If Senator McCAin was showing a clip of another candidate, the fair use seems more justified since the other candidate is not likely to cooperate by creating another clip that McCain can use to make his point. McCain, on the other hand, is free to go into a studio and record the same point on his own. The clip, therefore, is being used because of its theatrical impact and, apart from the fact that that it is “19 seconds of a 90-minute debate” there seems to be little to justify the use as being “fair use.” It certainly is not “criticism” (as would likely be the case if he were using a clip of another candidate).

    To be clear, however, while I don’t find McCain’s fair use argument compelling, I agree wholeheartedly with Professor Lessig that “presidential debates are precisely the sort of things that ought to be free of the insanely complex regulation of speech we call copyright law.”

  5. I’d have to be an idiot to contradict Lessig on his home turf, but what the heck….

    At most, FoxNews has a copyright in whatever creative expression it added, which doesn’t appear to be much: their spinning FoxNews logo, maybe a little bit of camera work and choice of which camera to use at any given time. That’s all pretty thin.

    Running through the 4 “non-exclusive” fair-use factors: (1) primary use: non-commercial, (2) nature of work: news reporting, not particularly creative, (3) amount and substantiality: small, (4) effect on potential market: slim to none. Seems to be a slam-dunk fair use argument.

    It seems to me that FoxNews might have a claim that McCain’s use of its logo implied that FoxNews endorsed McCain. But, even that seems to be a reach.

  6. [...] to use of clips in television commercials, where the ASCAP and BMI licenses do not apply. But as I have argued before, these sorts of uses are clearly fair use: they are transformative, brief, and have little or no [...]