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.

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.”

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.

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!).

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.