Yesterday it was widely reported that Sony BMG was responsible for removing Mitt Romney’s new campaign ad from Youtube.
Although it is not at all clear that any of the reporting sites have actually seen BMG’s takedown request, all of the sites I saw with this report repeatedly made the claim that the Romney campaign spot was clearly an example of fair use. All the authors apparently have assumed that BMG or its attorneys issued a DMCA section 512 (c) takedown notice or its functional equivalent to Youtube, and that Youtube took the video down pursuant to the safe harbor provisions in section 512.
All of these authors appear to misunderstand the “parody” fair use exception.
Fortunately some of the commenters get it right, much to Beschizza’s apparent frustration at BoingBoing. I’ll just repeat it here: you only get a pass on a claim of parody if your parody is targeted at making fun of the original copyrighted work. Mr. Romney’s ad isn’t making fun of Green or the song, it’s making fun of Obama. That’s not a parody of the BMG song that falls within fair use as it has been allowed by the Supreme Court. See e.g. Campbell v. Acuff-Rose, aka the “Pretty Woman” case. From the opinion:
For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.
Timothy Lee from Ars, for one, also apparently misunderstands the “cricicism and commentary” justification for a fair use claim:
The Romney ad seems like as clear-cut a case of fair use as can be imagined. Obama’s singing is a core part of the ad’s message, and copyright law explicitly mentions commentary and criticism as justifications for fair use.
Well, kinda. There is caselaw recognizing that critical commentary on an original work may require excerpting from that work. However, again, that argument misses the mark here- Mr. Romney’s ad isn’t a commentary on the melody or the words that are the copyrighted work at issue. It’s not really a commentary on Mr. Obama’s rendition of that work. It’s not even a commentary on the video recordings of Mr. Obama’s rendition (which, as Mr. Baker at Volokh notes, have all been taken down now as well). The Romney ad simply appropriates the audio from someone else’s recording of Obama’s (unlicensed!) performance of BMG’s copyrighted music and lyrics and then uses it to further the Romney campaign’s message.
“Wait!” commenters say. “Injustice and censorship! Core political speech! First Amendment!” And that’s nice, as far as it goes. But the First Amendment doesn’t trump copyright law. Romney’s campaign has the right to say whatever it wants, but that doesn’t mean they have a right to use others’ works without paying for them.
The larger problem with handicapping fair use judgments is that courts use a four-factor test, and the results can be all over the map. The argument about parody is generally understood to go to the question of whether the new use is “transformative,” which is one of the four factors that courts traditionally consider when evaluating a fair use claim. The other three factors are the amount of the copyrighted work that has been appropriated, the nature of the copyrighted work, and the impact of the appropriation on the future market for the original.
I don’t see the Romney ad having an impact on the future market of the song, but the ad is clearly a commercial use (it led to a “donate money to Mitt!” transaction page before it was taken down) and the song was clearly available for commercial licensing. And as discussed above, it’s not a parody, therefore it’s not “transformative.” So of the four factors, two of them are neutral at best, and the other two weigh against fair use, and I’d bet the Romney campaign would lose the suit, if BMG had the staggeringly bad judgment to actually sue someone over this flap. That’s just how copyright law works.
The question of whether that’s how we want the law to work (and if not, what we should do about it) is a discussion for another post. But for impatient readers, I think Lawrence Lessig has quite a bit to say about copyright and the political process.