Why the Fox News suit against Robin Carnahan's campaign is bogus.

The law, lawyers, and the court.
Sept. 24 2010 11:33 AM

Why the Fox News Suit Against Robin Carnahan's Campaign Is Bogus

It's legally weak and makes the network look partisan.

(Continued from Page 1)

That is not how copyright works. The doctrine of fair use exists precisely to protect the kind of use of copyrighted material that's in the Carnahan ad. Fair use permits the use of copyrighted material—without the owners' permission—based on a four-part test. First, courts examine the character of the use. Political commentary and criticism are especially favored. Commercial uses are not. Fox makes the weak argument that the Carnahan ad was a commercial use because it appeared on a campaign Web site that solicited campaign donations. As lawyer Ben Sheffner notes on his blog, courts have repeatedly rejected the proposition that this makes a campaign ad commercial. This is why the claim about Wallace's publicity rights also fails.

Second, courts look to the nature of the copyrighted work. A news show is expected to generate comment; this appears to cut in favor of a broad right of fair use. Third, courts look to amount of the copyrighted work taken by the user. In this case, the Carnahan campaign has taken a short clip, at 24 seconds, only 1 percent of a much longer show. And fourth, courts look to the impact that the use of the copyrighted material has on the market for the underlying work. Fox makes the strange argument that Carnahan's ad undermines the market for its news–even though Carnahan is, in effect, holding up Fox News as a reliable authority. Perhaps what Fox really means is that the appearance of its clip in an ad supporting a Democratic candidate undermines its reputation as pro-Republican. Needless to say, such a legal theory would be in tension with the network's professed concern for its objectivity. And in any case, copyright, unlike trademark law, does not exist to protect brand reputation.

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Fox, of course, claims that it is nonpartisan—"fair & balanced," the slogan goes. But this lawsuit looks like evidence of just the opposite. Even if Fox had a good copyright claim—and we're not convinced that it does—a prudent news organization would think very carefully before filing suit against a candidate in the heat of a campaign, lest it be perceived as using its intellectual property rights as leverage in the election. Fox News, however, seems to have had no such qualms. Maybe we shouldn't be surprised. This is, after all, the network 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.

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Sonia K. Katyal teaches intellectual property at Fordham Law School. Eduardo M. Peñalver is a professor at Cornell Law School. Together, they are authors ofProperty Outlaws.

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