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Reality Check: Fox News suit against Carnahan raises questions about copyright

This article first appeared in the St. Louis Beacon, Sept 28. 2010 - Fox News' copyright suit against Robin Carnahan's campaignmay be the first time that a news organization has sued a candidate for use of its copyrighted content, experts say. But that doesn't necessarily mean that the claim is frivolous, lawyers say.

News organizations previously have insisted that campaigns take down ads with copyrighted content. But experts have not yet found a precedent for the lawsuit that Fox filed a week ago

This suit -- like most involving the fair use exception of copyright law -- will rise or fall on the particular facts of the campaign's use of a Fox News broadcast from 2006.

The 32-second ad turns a Chris Wallace interview with former Rep. Roy Blunt into an attack ad against Blunt. The Fox footage runs through most of the ad. Wallace is asking Blunt whether he is the right person to clean up Washington in light of his connections with lobbyists, such as Jack Abramoff, during his House tenure.

"The burden will be on (Carnahan) to demonstrate that her 'use' of the Fox footage was a 'fair use' under the four-factor test outlined in Section 107 of the federal copyright act," said Laura Hlavach, who teaches copyright as a professor in the School of Journalism at Southern Illinois University Carbondale. "That test is exceptionally fact specific."

One of the four factors is the amount of copyrighted material used in the ad. This may be Fox's strongest argument in that almost all of the ad is composed of the Fox footage.

Hlavach pointed out that in 1985 the U.S. Supreme Court rejected First Amendment and fair use arguments made by the Nation magazine when it published 300-plus words of President Gerald Ford's extensive memoirs.

"Ford's publisher (Harper & Row) had specific evidence of injury to market value, which would seem to be much harder for Fox to prove here," wrote Hlavach in an email. "But I think the Harper & Row case is relevant because the court seemed rather willing to reject the Nation's 'public interest' arguments."

As Hlavach suggests, Fox may have a hard time making its case on a key factor in fair use cases, that the Carnahan ad harmed its commercial market for the copyrighted material. It is unclear there is much of a market for the Wallace clip.

Another factor that a court analyzes in fair use cases is the character of the use. Uses for the purpose of criticism and education are favored, while those with a commercial character are not. Fox argues that the purpose is commercial because the ad is used on Carnahan's website adjacent to a plea for campaign funds. (The Carnahan campaign has removed the ad from the website.) Even so, Hlavach and other lawyers say that solicitations for campaign funds are not generally viewed as commercial.

The other factor in the fair use test is the nature of the copyrighted work. The fact that this was a news show and is expected to generate commentary on all sides of the spectrum may help Carnahan more than Fox.

One unusual argument that Fox makes is that the ad harms its reputation as an objective news organization. Experts on copyright law say that reputational harm is not part of copyright.

Ben Scheffner, a lawyer who writes a blog about campaigns and copyright, wrote, "the complaint repeatedly emphasizes the alleged reputational damage to Fox for use of the footage. Even assuming that the ad does falsely imply that Fox and/or Wallace are endorsing Democrat Carnahan (a dubious proposition, it seems to me), reputational damage is just not a cognizable copyright interest."

Slate, in an article critical of the Fox suit, wrote that the Fox press release announcing the suit sounded "like a press release for the Blunt campaign" Slate noted that the Fox network is "owned by a corporation that recently made a $1 million donation to the Republican Governors' Association and a $10,000 donation to Blunt himself. The lawsuit is another kind of gift," it wrote.

In addition to the copyright claim, Fox maintains that the Carnahan ad invaded Chris Wallace's privacy by using his material for purposes he did not intend, and that Carnahan violated Wallace's "right of publicity" by using his image in ways that Wallace did not approve.

A celebrity has broad power to control his or her image. Most journalists are not celebrities, but Wallace may be because of his high-profile on Fox and his famous father.

Hlavach noted that this theory is in conflict with the general character of a reporter. "Often,the 'right of publicity' only applies to performers and people who have built up a certain 'right of publicity' as a function of business development. It is strangely intriguing to see a news reporter argue a 'right of publicity.' So much for being a 'fly on the wall"'!"

Even a short clip, like the one Carnahan's campaign used, can qualify as a violation of the right of publicity. Hlavach pointed to "a TV station that aired the full 15-second acts of a state fair performer (Hugo Zacchini, the "human cannonball"). The court held that the First Amendment did not prevent Mr. Zacchini from bringing a right of publicity lawsuit against the station," she wrote.

Carnahan has asked the court to move quickly in the case for fear of chilling political expression. In its reply, Fox pointed outthat Carnahan is continuing to use the ad prominently despite the suit, an act it says "borders on deceitful."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.