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.

  US Senate Candidate Democrat Robin Carnahan. Click image to expand.
Robin Carnahan with Barack Obama

Last week, in an apparently unprecedented move, Fox News sued Robin Carnahan, Missouri's Democratic candidate for U.S. Senate, for copyright infringement. Admittedly, Fox attacking a Democratic politician isn't surprising. Nevertheless, the lawsuit is something of a watershed, because it appears to be the first time a news organization has filed a copyright lawsuit against a political candidate for using a news clip in a campaign ad before an election. The lawsuit highlights the troubling tendency of copyright owners to make overreaching claims about the scope of their legal rights. The Carnahan case is also an example of something even more pernicious: the potential for copyright law to become a means of political censorship.

This story began when the Carnahan campaign produced a seemingly run-of-the-mill campaign advertisement using a 24-second clip from a 2006 interview in which Fox News host Christopher Wallace questioned Rep. Roy Blunt, Carnahan's opponent in the Senate race, about his ethical standards. In the clip, Wallace discusses how Blunt once inserted favorable language into a bill while dating a tobacco industry lobbyist and suggests that Blunt was too close to another lobbyist, Jack Abramoff. Clearly, the Carnahan campaign figured that, given the network's conservative credentials, criticism of Blunt from a Fox News host would be a particularly effective line of attack.

Fox filed suit to force Carnahan to stop using the footage, alleging that the ad infringes its copyright on the interview and also violates Wallace's right of publicity by using his likeness (in the clip) for commercial advantage. Fox was represented by a law firm that has represented Blunt in the past. The network said it sued to protect the reputation of its news business for accuracy and objectivity. But, curiously, the complaint reads more like a press release for the Blunt campaign: "In a smear ad against political rival Roy Blunt, Defendant [Carnahan] . . . has usurped proprietary footage from the Fox News Network to make it appear–falsely–that FNC and Christopher Wallace, one of the nation's most respected political journalists, are endorsing Robin Carnahan's campaign for United States Senate."

Other news outlets have in the past asked political candidates to take down videos that included short news clips. But this is the first time, to our knowledge, that a news organization has actually filed a lawsuit against a political candidate for showing a clip in the midst of a campaign. Fox says that the use of the clip in the ad misleadingly suggests that Wallace or the network has endorsed Carnahan and that this suggestion undermines the network's "objectivity." But the lawsuit undermines Fox's objectivity far more than the ad itself. According to the Carnahan campaign, Blunt has used Fox footage in his own ads with no objection from the network. And in the Carnahan ad, the clip is clearly identified as Fox News footage from January 2006. Since the campaign for Missouri's Senate seat had not even begun at that time, the ad can't possibly represent an endorsement of Carnahan.

The surest way to ensure that a candidate's insertion of a news clip in a campaign ad isn't confused with an endorsement is to allow the clips to be freely used. This is why Fox's copyright argument is particularly troubling. The network correctly asserts that it owns the copyright to its shows. But Fox seems to think this means that any unauthorized dissemination of its footage is entirely off-limits for political campaigns. . If the courts were to adopt this standard, the consequences would be dramatic. News organizations would be able to decide which candidates can reproduce what to suit their own political or business agendas. Since virtually all television news footage is subject to someone's copyright, such absolute control would radically curtail the fodder available for political ads.

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.

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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