The ad contained clips of President Obama’s performance of the Al Green song “Let’s Stay Together.” As you can see from that link, the President’s original performance is still available on YouTube (as of the publication of this post, at least). Apparently, BMG Rights Management (one would assume this is the copyright owner of the underlying musical composition) sent a takedown notice demanding that the video be pulled.
The U.S. News story states that “The Romney campaign says its use of the footage was proper, under fair use, and it plans to defend itself.” Is the Romney campaign in the right?
This is, of course, a developing story, but it raises some interesting legal issues. I have written previously about the four factors that apply to the “Fair Use” defense to a copyright infringement. The main issue here would most likely be the “Purpose and Character of the Accused Use.”
Many candidates have used the original recordings of popular songs without permission (here are a few such examples). In most cases, after the artist demands that the candidate stops using the song, the candidate will comply. There is usually not much incentive for a political candidate to get into a fight with a popular musician in the middle of a campaign – at best, it would be a distraction from the issues that the candidate is trying to push (usually that “issue” is “my opponent is a big jerk, so vote for me instead.”) I am not aware of any cases that have actually gone to trial on this issue (readers – please enlighten me if I’ve missed anything here). It would be fascinating to see how a court would rule on a fair use claim of this nature.
The Romney ad is a little different. His ad (according to the accounts – since it was taken down, I can’t say for sure) used a recording not of Al Green’s original, but the President’s cover version. Romney might have a valid fair use defense – there are endless examples of one politician using videos of his or her opponent in an ad. Should this video be off limits for the purposes of otherwise-valid political speech simply because the President was singing a song? If President Obama chose to make all his public statements to the tunes of popular songs, would Romney be prohibited from showing clips of those videos?
My best guess here is that a court would rule in favor of what is clearly political speech on First Amendment grounds – which is the underlying basis of the Fair Use defense in the first place. It’s doubtful that Romney’s use of the clip will have any damaging effect on BMG’s future sales of Al Green recordings or other cover versions of the songs. In general, political speech rights under the First Amendment will trump copyright claims in most circumstances, and I doubt this will be any different. Most likely, if the facts as reported are accurate, this will just provide some extra publicity for the Romney campaign.