Copyright law favors Romney in ad’s use of NBC News report

Monday, January 30, 2012

NBC News has asked Republican presidential candidate Mitt Romney’s campaign to stop airing an anti-Newt Gingrich ad that includes an excerpt from a 1997 “NBC Nightly News” report featuring Tom Brokaw.

The political ad shows the former NBC anchor reporting that Gingrich had been reprimanded by the House Ethics Committee. NBC and Brokaw have protested that the use of the clip violates copyright law and exploits Brokaw and NBC News’ journalistic credibility.

That’s an understandable stance, and exactly what a news organization should be saying when its content is being co-opted for a political campaign, but NBC isn’t likely to file suit. In this case, Romney’s campaign has copyright law on its side.

Under U.S. copyright law, the creator of material has ownership rights and can limit its use by others. But there is a clear exception to copyright law, permitting “fair use” of content when it meets a number of criteria.

The Copyright Act of 1976 provides that four factors have to be examined:

  1. The purpose of the use, particularly whether it’s for profit or nonprofit purposes.
  2. The nature of the copyrighted material.
  3. The amount of the segment used in relation to the original copyrighted work.
  4. The impact of this use on the market for the original work.

In this case, the clip is being used for a nonprofit purpose and is clearly labeled as a campaign ad. The clip is a very small segment of the original “NBC Nightly News” broadcast and there’s no meaningful market value in a 14-year old newscast.

Further, the purpose of fair use is to ensure that copyright restrictions don’t unduly impair the free flow of information. Information concerning the selection of the next president of the United States is of the highest public interest, and political speech has long enjoyed the strongest possible First Amendment protection.

Though NBC is unlikely to overcome the fair-use exemption, there’s some consolation here. In an era of high-gloss, high-drama, one-sided political ads, the most effective way to communicate about a political rival is an accurate, evenhanded report by a news professional.

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