The intersection of copyright law and elections is growing to be an important new area of study and litigation. The Center for Democracy and Technology has documented and analyzed at least a dozen recent instances where video hosting sites like YouTube have removed political campaign videos pursuant to the Digital Millennium Copyright Act’s requirement that such sites comply with take-down requests submitted by copyright owners. Indeed, in the run-up to the 2008 presidential vote, the John McCain campaign asked YouTube to more carefully scrutinize political videos for fair use or non-infringement before removing them pursuant to take-down requests. (YouTube’s response noted that such special treatment was not only logistically impractical, but also might push the site out of the safe harbor protection afforded it by the DMCA for compliance with the “blind” take-down regime).
A related copyright/campaign controversy grabbed particular attention during the recent election cycle. In September, Fox News filed a copyright infringement suit against the campaign of Robin Carnahan, the Democratic then-candidate for Missouri’s U.S. Senate seat. (Carahan was eventually defeated at the polls by Republican Roy Blunt.) The complaint alleged that Carnahan’s campaign “usurped proprietary footage from the Fox News Network to made it appear – falsely – that [Fox News] and Christopher Wallace, one of the nation’s most respected political journalists, are endorsing Robin Carnahan’s campaign.” The ad (which you can watch here) consists almost entirely of footage taken from Wallace’s interview of Blunt on Fox News earlier this year. In addition to copyright infringement, the complaint alleges invasions of Wallace’s privacy and publicity rights. Continue reading