BROOKE GLADSTONE: So what do you expect when you’re watching campaign ads? The obligatory shot of candidates with their smiling faces, scenes of them mingling with just plain folks and inevitably, in the negative ads, incriminating news clips of their opponents? But if FOX News wins its recent lawsuit, you'll be seeing less of that news footage. The network has sued the campaign of Robin Carnahan, a Missouri Democrat running for the Senate, for a TV ad her campaign created. The ad shows her opponent, Republican Roy Blunt, in a deer-in-the-headlights interview with FOX’s Chris Wallace.
CHRIS WALLACE: - lobbyist and your campaign committees paid 485,000 thousand dollars to a firm linked to lobbyist Jack Abramoff. Are you the one to clean up the house?
MALE ANNOUNCER: Roy Blunt, the very worst of Washington.
BROOKE GLADSTONE: FOX says that the Carnahan campaign shouldn't be allowed to use their footage, that the ad violates its copyright and represents a threat to its reputation for objectivity. Fordham Law School Professor Sonia Katyal has written about the case for Slate. She thinks this lawsuit could change how political ads look in the future. Sonia, welcome to On the Media.
SONIA KATYAL: Thank you. It’s good to be here.
BROOKE GLADSTONE: FOX says that the use of the clip in the ad misleadingly suggests that the reporter doing the interview, Chris Wallace, or that the network had endorsed Carnahan, and that this suggestion undermines the network’s objectivity. But the Carnahan campaign says that, first of all, Blunt, who is Carnahan’s opponent, has used FOX footage in his own ads, with no objection from the network. What’s more, FOX’s parent company, News Corp., recently made a one-million-dollar donation to the Republican Governors Association, not to mention a donation to Blunt himself. So you got to wonder whether objectivity is really what the network is defending with this lawsuit or its brand as pro-Republican.
SONIA KATYAL: I agree with that. I mean, I think we have a news organization that - you’re entirely right - has made very strongly partisan claims on behalf of one of the candidates and against the other. The introduction, however, of copyright into the very [LAUGHS] complex world of campaigns is definitely something that is new. One of the strongest ways in which copyright has periodically entered campaigns has been when musicians object to the use of their songs. So a few years ago, Jackson Browne threatened to sue McCain for the use of the song Running on Empty, a similar issue involving Heart’s Barracuda. Bruce Springsteen in 1984 objected to the use of one of his songs at a New Jersey rally for Ronald Reagan. And typically, in those instances, the political campaign decides, okay, you’re right, we shouldn't use this song or we should license the rights to use the song. But another way in which copyright has entered into political campaigns has been in one particular case that also happened in 2004, where a group of students got wind of a cache of information that demonstrated the fallibility of the electronic voting machines for Diebold, and they put up the information on the Web. And Diebold threatened, under the Digital Millennium Copyright Act, for the students to take down the information. And the students did so, but what they also did was set up an entire network of students across the country – and we talk about this in our book Property Outlaws¬ – where they just kept putting up the information from school to school to school.
BROOKE GLADSTONE: This is information that basically indicted Diebold for voting tallies that were insecure and manipulatable, correct?
SONIA KATYAL: Yes, yes.
BROOKE GLADSTONE: What you’re talking about is just so reminiscent of what happened during the Pentagon Papers. There was an injunction placed against The New York Times, so then The Post did it, the injunction against The Post, and then on and on, throughout more than a dozen American newspapers.
SONIA KATYAL: Yes. One of the great things about the observation that you just made is to really think about how if copyright could be used as a sword to really suppress political content and suppress information that the public really desires, what the results might be, in terms of what our news reporting would look like. And in the end, the students actually won. They refused to back down. They wound up being represented by the Stanford Fair Use Clinic. They sued on their own behalf. Diebold backed down and actually wound up having to pay their lawyers’ fees. So it’s a great example of how at times a little bit of challenge can go a really long way.
BROOKE GLADSTONE: So what do you think will happen in this case?
SONIA KATYAL: My sense is that once we actually have a court taking a look at the merits of the case, it will most likely find in favor of fair use. One of the things that’s really important to keep in mind is that political campaign commercials are not really considered to be commercial speech. They're more likely to be considered political speech. And so, the allegations that there’s any sort of commercial effect on FOX really don't hold that much water. The main issue, I think, for FOX is really an issue of brand reputation, that it doesn't want its content being used in support of a Democratic candidate. And that’s not the kind of injury that copyright is really designed to rectify. Copyright is designed to rectify injuries that have to do with someone copying content and making money from that content. The use of a news clip in a campaign commercial, it’s a little bit of a different context.
BROOKE GLADSTONE: So lay out the stakes here. What happens if the court decides this time that FOX is right?
SONIA KATYAL: The way that I think it would go if a court decided to rule in favor of FOX would be that suddenly individuals who are making campaign commercials would have to consider licensing all news clips that they relied on, potentially all headlines, potentially all content that drew on news organizations. And the consequences of that would be staggering. And when we think about the effect on the high cost of political campaigns now, adding this additional cost would probably leave a lot more poorly financed candidates unable to really prepare effective campaign commercials, because they would be saddled with tremendous licensing costs.
BROOKE GLADSTONE: Thank you so much.
SONIA KATYAL: Thank you. It’s been a pleasure to be here.
BROOKE GLADSTONE: Professor Sonia Katyal teaches intellectual property law at Fordham University. She wrote about the lawsuit for Slate with her coauthor, Professor Eduardo M. Peñalver.