Matthew Bradley, a photographer, recently received an email noting that an online political ad seemed to be using one of Bradley's Creative Commons-licensed photos without proper attribution.
Bradley has posted a picture of Rep. John Murtha on his Flickr account, along with an Attribution-Noncommercial-No Derivative Works 2.0 Generic license, meaning that others are free to use it for noncommercial purposes, so long as they credit the creator and don't create derivative works from it.
But it looks like the campaign of William Russell, Murtha's opponent for his Congressional seat, used Bradley's photo of Murtha in an ad without crediting Bradley. This looks like a violation of Bradley's Creative Commons license, and as such, would actually be an infringement of Bradley's copyright.
The Russell campaign could claim fair use—noting the political nature of the use. This might be a harder argument than the McCain campaign's use of clips from a CBS interview—given that, proportionally, more of the underlying work was taken, as well as the fact that a photographic portrait is more likely to be found a creative (as opposed to a factual) work than a news interview. Add to this the fact that in this context, any photo of Murtha might work; in McCain's case, the need to reference a specific quote from a specific interview would militate towards the sense that the fair use of that particular clip was necessary.
In any case, there's a ready way for the Russell campaign to avoid any possible copyright litigation, and all without spending any money on a license. They could simply credit Bradley and note the use of the CC image, thereby absolving themselves of infringing by violating the attribution clause of the license. Otherwise, Bradley has made the choice to let others make certain uses of his image for free, and there's no reason for them not to take advantage of that.
Bradley has chosen to contact the Russell campaign to straighten the issue out—the ads could use a different picture of Murtha, obtain a (different) license from Bradley, or simply credit Bradley and note the CC license in the ads (this is leaving aside, for the sake of argument, the likelihood that the ads are derivative works of the photo).
In his own blog post on the matter, Bradley expresses a commitment to free speech—something that, with the power of copyright law behind him, he could opt to chill just a little bit.
Since this week is the tenth anniversary of the DMCA, I feel compelled to note that Bradley would be in his rights to issue a 512(c) takedown notice to YouTube to have the video removed. How long would it take for YouTube to receive and respond to a putback notice from the Russell campaign? And how much time, discourse, and debate would be lost from that campaign because of this? Bradley even has the option of suing, and pressing for an injunction to prevent further airing of the ad—an order which would easily take longer than the remaining campaign season to appeal.
What this issue illustrates is the extent to which the issues in politics and copyright will naturally overlap and intertwine—even though, as Lessig points out in his recent Op-Ed, it's often best if people don't mix in overly strong assertions of copyright into political battles. It's a now-standard campaign tactic to quote an opponent's positions, replay his gaffes, or juxtapose contrasting statements he's made. This is a way of bringing the public record into the debate—and it's easier than ever to do it powerfully. This is the bread and butter of politics—holding a candidate to her past words and positions. And so long as this happens, it will also require reproducing, displaying, performing, and adapting works that can be copyrighted.
Politics is a bright example of an arena where the conversation does not just include remixing—it often is all about remixing—placing someone's words in a new context to illustrate something that that person that may not have been apparent at first. Sometimes it's insightful, sometimes it's misleading. But the building blocks of that conversation are made up of recorded, found material. And those who made those recordings can choose to exert their rights in a variety of ways—trying to put a stop to anything unauthorized, or taking the varied and various uses of their works and their nuances into account. It need not be all-or-nothing. The extent to which copyright can exert an influence on this conversation is tremendous. The extent to which it should be is not.