On Debates, both presidential and fair use
On Debates, both presidential and fair use
On Debates, both presidential and fair use

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    Fox News has demanded that Senator John McCain’s (R-AZ) presidential campaign cancel ads that use footage from the Fox-broadcast Republican presidential debate, claiming that the ads are copyright infringement.

    This is absurd. McCain’s campaign rightly is claiming that the 19 seconds of footage are fair use, and Fox’s interpretation of fair use leaves a lot to be desired:

    Fox’s lawyers say “fair use” does not apply to commercial use and that Mr. McCain’s campaign has no substantive legal defense.

    First of all, it’s entirely debatable (no pun intended) as to whether or not using footage in a political campaign is “commercial.” Beyond that, though, you can never decide fair use based on just one of the four factors. Courts are required to analyze the four fair use factors, and the whole situation beyond those factors should be taken into account, too.

    So let’s look at those factors.

    1. Purpose and character of the use, including whether such use is of a commercial nature…

    It might be arguable whether or not using the clip in a political campaign ad is “commercial” or not. Even if it were, that would simply begin to tilt the balance away from fair use. However, none of the four factors is dispositive–just because one factor goes one way or the other doesn’t foreordain a result.

    2. Nature of the copyrighted work.

    Factual accounts and events are more likely to be put to fair uses than fictional ones. Some of the ideal, quintessential fair uses include commentary, criticism, and news reporting. This means uses of factual accounts are more likely to be fair.

    This debate was a public news event, not the creative output of Fox screenwriters, actors, or animators. It’s meant to be part of the conversation and debate surrounding the Republican presidential nomination.

    3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole.

    19 seconds of a 90 minute debate. I don’t think that requires too much analysis.

    4. Effect of the use upon the potential market for or value of the copyrighted work.

    The McCain ad is not going to supplant ad revenue or DVD sales accompanying Fox’s monetization of the debate. What exactly does Fox lose from this use? It’s difficult to see what harm the networks suffers at all.

    McCain’s campaign should be well within its legal bounds to use the clip. If anything, the allegations of infringement are what lack substance.

    Incidentally, this isn’t a partisan issue—the same sort of problem arose regarding Speaker of the House Nancy Pelosi’s (D-CA) use of C-SPAN footage on her website http://www.usatoday.com/news/washington/2007-03-07-1965288649_x.htm.