Reproducing the Presidential Debates: Should Fair Use Govern?

by Dororthy Eshelman, MTTLR Associate Editor

Introduction

Millions of viewers have tuned in to watch the presidential and vice-presidential candidates debate pressing issues before heading to the polls earlier this week.¹ A growing number of Americans, however, get their political information from online sources and search YouTube, political blogs and other non-traditional sources for debate coverage. In this most recent election, but even more so in those to come, the issue of who has what rights to use, remix, and distribute that content has been and will be an essential concern of participatory democracy. and upcoming elections.

Some networks have sought to encourage political participation and voter awareness by making their debate footage freely available to the public despite potential copyright violations.² But not all networks chose to make their debate footage available for widespread dissemination. Fox News was heavily criticized when it sent cease and desist notices to candidates using debate clips from the Fox-sponsored Republican primary events.³ Senator McCain, in particular, faced the brunt of Fox’s wrath when he aired a television ad entitled “Tied Up” that was approximately 30 seconds in length, most of which came from a Fox debate, as evidenced by the Fox logo clearly visible in the lower corner of the screen.⁴ Although Fox News claimed exclusive rights to the footage, Senator McCain argued that his use of the clip was within his fair use rights to his own statements during the debate.⁵ Since the issue was not litigated, but still is of primary importance for later debates, this post will discuss whether the “fair use” exception can be invoked to justify using both small and substantial portions of the debate in later reproductions.

Is Reproducing Copyrighted Debate Footage a "Fair Use"?

When confronted with legal action, Senator McCain argued that his use of the 30 second clip of Fox News footage constituted a fair use of copyrighted material as provided for in 17 U.S.C. §107. This section of the Copyright Act details the fair use limitations on exclusive copyrights, as determined by an analysis of four factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”⁶

The fair use exception represents a balance between the copyright owner’s exclusive rights and the public’s interest in the wide availability of information that affects “areas of universal concern.”⁷

Where, as here, the “purpose and character of the use” is primarily political in nature, courts are inclined to classify it as a fair use. Important first amendment implications cannot guarantee a fair use defense, but “when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use.”⁸ Likewise, because the original work is political and made for the benefit of the public, the second prong also counsels in favor of fair use.⁹

Although the contested McCain advertisement used just a small portion of the Fox debate footage and so it would likely have no problems with the third and fourth prongs of the fair use guidelines, individuals that post more substantial portions of a debate may run afoul of those factors, as well. When the 11th Circuit evaluated whether the fair use defense allowed the duplication of entire news stories (albeit for commercial sale), the court concluded that the substantiality of the copied segment and the commercial purpose of the copy nullified the defense even though the news station did not “actively market copies of the news programs” for its own profit.¹⁰ Posting substantial portions of the copyrighted debates may be problematic if based only upon the fair use exception to the exclusive rights of the broadcasting networks.

The Public Domain as an Alternative to Fair Use

Because of the legal uncertainty over whether fair use protects candidates and the public when posting debate footage, a number of online activists across the political spectrum (including Professor Lessig of Stanford Law, Craig Newmark, founder of Craigslist and Jimmy Wales, founder of Wikipedia) are calling for networks to release their footage to the public domain.¹¹ According to this bi-partisan group, the presidential debates are held for the benefit of the public, and so “the right to speak about the debates ought to be ‘owned’ by the public.”¹² Since the candidates themselves largely control the terms under which they debate, Professor Lessig believes that they should take a more direct stand on the issue and insist that the networks release the debate footage.¹³ Although networks certainly have an interest in maintaining their copyrights to political debates, perhaps Professor Lessig is correct in his observation that “[c]opyright, in my view, is essential and important, in some places. This isn't one."¹⁴

---

1 Steve Gorman, Palin-Biden Debate Sets TV Ratings Record, Reuters, Oct. 3, 2008.
2 See Detailed Usage Guidelines, msnbc.com. (“After the live debate has concluded, non-NBC media and individuals, including blogs and Internet media, may make unlimited use of the debate and excerpts, with appropriate credit to MSNBC, for the purpose of analyzing, reporting on, or commenting on the debate.”). See also CNN: No restrictions on presidential debate footage, cnn.com, May 5, 2007.
3 Jon Stokes, Fox News Faces Wrath from Right and Left over Debate Footage Stance, arstechnica.com, Nov. 1, 2007.
4 Tied Up (John McCain 2008, 2007).
5 Jim Rutenberg, Fox Orders Halt to McCain Ad, The New York Times Politics Blog (Caucus) (Oct. 25, 2007).
6 17 U.S.C. § 107 (2000).
7 Meeropol v. Nizer, 560 F.2d 1061, 1068 (2d Cir. 1977).
8 Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526, 1536 (C.D. Cal. 1985)
⁹ Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957, 961 (D.N.H. 1978)
10 Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1496 (11th Cir. 1984).
11 Julian Sanchez, Bipartisan Coalition: Debate Footage Must be Public Domain, arstechnica.com, Sept. 26, 2008.
12 Letter from Open Debate Coalition to Senator McCain and Senator Obama.
13 Id.
14 Andrew Malcom, Diverse Web Coalition asks McCain, Obama to Alter Debates, Los Angeles Times Blogs (Top of the Ticket), Sept. 25, 2008.