A ‘fair and balanced’ approach to copyright

Fox News filed a complaint on 15 September against the Democratic Senate candidate Robin Carnahan’s campaign outfit  claiming copyright infringement in Chris Wallace’s interview with her opponent Republican Roy Blunt. The advertisement used about 24 seconds of footage from the hour long interview. Fox also claims that the personality rights of the presenter Chris Wallace were infringed. Carnahan is running against Blunt in the US congressional mid-term elections on 2 November.
The Carnahan campaign may have a defence of fair use (referred to as fair dealing in the UK) since, inter alia, only a very small part of the work was copied. Even so, the worrying aspect of this complaint is the chilling effect it may have on speech during political campaigns. 
There is some force to the arguments advanced by news commentators (see e.g. here and here) that Fox News is not using copyright law to prevent the use of copyrighted material that would damage its economic interests but rather prevent the use of material that hurts its image amongst its viewers as an unabashedly conservative news channel. Indeed, Fox argues that the Carnahan advertisement implied that Fox was endorsing her. Yet the Carnahan campaign has not infringed Fox’s trade mark (or at least, this is not alleged) and Fox’s attempt to use copyright law to protect its image or reputation will likely fail unless the complaint can be re-framed purely in terms of economic harm.

A small but telling detail in the complaint comes in the form of a reference to stealing at paragraph 19. As any undergraduate student of intellectual property will know, to steal means to deprive someone of something: copying cannot be stealing. Copyright, rather, is infringed. What this rhetorical flourish and its freight of moral culpability (see Loughlan for an excellent discussion of copyright and the the language of theft) underscores is the way in which copyright law may be used as a weapon to suppress political speech that copyright owners find undesirable. 

For a good overview of examples of copyright take down notices and their First Amendment impact in the context of political campaigns, see this report from the Centre for Democracy and Technology.

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