Copyright Lessons from the Campaign Trail: Romney, Gingrich and Fair Use

by Mintz Levin - Copyright & Trademark Matters
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This Republican primary season has provided lots of fodder for political blogs, but it has also provided a few gems relating to — what else — trademark issues.    Now, U.S. copyright law is in the spotlight of the Republican primary campaign.  First, Republican presidential hopeful Mitt Romney is considering whether to pull a television ad that is comprised wholly of a 30 second clip from a January 21, 1997 episode of NBC’s “Nightly News” program hosted by Tom Brokaw.  The Romney ad is entitled “History Lesson” and can be viewed here.  In the ad,  Brokaw announces the House Ethics Committee’s decision to penalize then-Speaker Newt Gingrich.  The ad contains no other voiceover or images.  It ends simply with a Romney disclaimer (“Paid For By ….) and the statement that Romney approves the ad.  NBC has sent the Romney campaign a cease and desist letter, alleging that the ad constitutes copyright infringement.  Tom Brokaw has expressed that he is “extremely uncomfortable” with the use of his personal image.   Romney’s campaign asserts that its use of the news clip  “falls within fair use” and, therefore, does not violate copyright laws.  

Second, Romney’s primary opponent in the race for the Republican nomination, Newt Gingrich, has copyright troubles of his own.  On Monday, Gingrich was sued in Illinois by a former member of the band Survivor (under the name “Rude Music”) for his use of the song “Eye of the Tiger” at campaign events.  The complaint asserts that Gingrich is “sophisticated and knowledgeable” of federal copyright law, citing Gingrich’s tenure in the U.S. House of Representatives during which the Copyright Act underwent several revisions.  As evidence of Gingrich’s further familiarity with copyright laws, Rude Music cites Gingrich’s recent criticism of the Stop Online Piracy Act at the Republican primary debate in South Carolina.  During that debate, Gingrich is quoted in the complaint as saying: “We have a patent office, we have copyright law. If a company finds that it has genuinely been infringed upon, it has the right to sue.”  In the complaint, Rude Music seeks an injunction and unspecified monetary damages based on Gingrich’s unauthorized public performances of the song.

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