Sam Shad Challenges Obama Campaign over Ad Footage
I wrote a really long post about this and then accidentally closed my browser window before saving it, so I really don’t have the stomach to retype the whole thing. All of this is thanks to commenter Ross and Anjeanette Damon. Here’s a summary with links:
Sam Shad has asked the Obama campaign to take down an ad that uses footage of McCain on Shad’s show talking about how he don’t want no nuclear waste traveling through his neighborhood.
Sam Shad sent a letter to the Obama campaign. The Obama campaign said “hell no” so Shad sent another letter calling the Obama folks ridiculous.
Is it fair use to use Shad’s footage in an campaign ad? Here’s the Standford Fair Use site on Fair Use:
Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.
Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute will have to be resolved by courts or arbitration. If it’s not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages.
The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.
Is Shad being deprived income in this case? What do you think? Fair use or not?
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I think this crosses over the fair use act. Number one, the Obama campaign could have easily just quoted McCain on Nevada Newsmakers instead of using actual footage. Number 2, in the history of Sam Shad’s show no other clips have been used in any other campaign commercials, nor have I seen campaign commercials with clips used from other copyrighted shows like Meet the Press, CNN or Fox News. Usually, they will just use a quote from what the candidate said on the show and not actual video. Probably for this reason.
Number 3, the Obama Campaign did not use the full quote from McCain, and it was taken out of context, so I hardly think that’s ‘commentary’ or ‘criticism’.
I am a Obama supporter for the record, but I disagree with their use of that footage.
Shad would have a hard time arguing economic loss from the exposure. It actually reminded me that he had a show and I went to the site to watch a few episodes (being exposed to his sponsors) to catch up on what has been happening in the Silver State.
Despite it being a “commercial” - it’s not for commercial use; Obama for America, Inc. isn’t trying to make a profit on the ad - they’re providing political argument. Shad needs to realize some words can have multiple meanings.
Shad’s only potential for hope might be that Obama’s campaign isn’t commenting or criticizing on Shad’s questions, merely McCain’s answer. That might limit the Obama campaign to just using McCain’s answer - putting the quote truly out of context. Either way, chances are Shad won’t be able to lawyer up enough to what would be needed to battle Perkins Coie.
*not legal advice, I’m merely a law student
Thanks for the shout out Myrna.
Sam Shad is using this to garner more income and viewers so they can get more advertising dollars. What a worm.