If copyright law prohibits airing short clips from a 31-year-old hockey game, the law needs re-writing




Part of Tim Pawlenty's plan to win over Americans seems to involve airing old hockey highlights. A winning strategy? Doubtful. Illegal? ABC Sports says so. "It's a violation of our copyright and exclusive proprietary rights," a source at the network insists. "And they used our announcer's voice, which they are not allowed to do, either." The Pawlenty campaign says the ad is fair use.

I am not here to tell you who is correct as a legal matter.

But if our copyright law does prohibit using less than 10 seconds of footage from a hockey game that was played and broadcast more than three decades ago, it's time to drastically change the law. If I may direct your attention to Article 1, Section 8, Clause 8 of the United States Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Is progress in human knowledge or the arts somehow promoted by preventing the use of old sports footage in political commercials? Searching my brain for a plausible affirmative argument, I cannot find one. Does this specific ad even diminish the economic value of rights to the broadcast? It's hard to see how. Footage of the game is all over YouTube. And who on earth even remembers the "Miracle on Ice" if it doesn't bubble up in national media culture every so often?