Is Romney's Tom Brokaw Ad 'Fair Use?'

A senior adviser to Mitt Romney says the campaign's new TV ad will stay, despite NBC's demands that it be taken down. Does the ad qualify as "fair use?"

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Via Politico, Eric Fehrnstrom, senior adviser to Mitt Romney, responds to the controversy surrounding a new campaign ad consisting of a single clip from a 1997 Nightly News broadcast. Following a rally in Panama City, Florida, Fehrnstrom told reporters that the campaign has received a cease-and-desist letter from NBC's legal department, but that the ad will remain in rotation.

“We just received the letter. We are reviewing it. But we believe it falls within fair use,” Fehrnstrom said. “We didn’t take the entire broadcast, we just took the first 30 seconds of it.”

Asked to respond to Tom Brokaw's statements that the ad made him "extremely uncomfortable" and felt it "compromised" his "role as a journalist," Fehrnstrom repeated his "fair use" defense of the clip:

"He's a very respected newsman but we believe that the use of that clip falls within fair use standards. We respect him as a newsman who has a lot of credibility but we believe this falls within fair use standards.”

So what denotes "fair use?" According to Section 107 of U.S. Copyright Law, there are several instances in which "the reproduction of a particular work may be considered fair," such as "criticism, comment, news reporting, teaching, scholarship, and research." The difference between fair use and infringement is vague, though Section 107 does list four determining factors:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value of, the copyrighted work

Perhaps there is a debate to be had over the nonprofit vs. commercial nature of political attack ads. But regardless, copyright only protects the way the authors express themselves; it does not extend to "any ideas, systems, or factual information conveyed in a work." It would be easy for the Romney camp to argue that it was the content of NBC's broadcast, and not the particular style in which Tom Brokaw delivered it, that was the intention behind the clip's use. That would make the case for fair use pretty airtight.

This article is from the archive of our partner The Wire.