Several months ago, we highlighted the Canadian Conservative party’s use of the Canadian Broadcasting Company’s copyrighted footage in political attack ads. (Not Quite Fair Use: Canada's Fair Dealing Exception to Copyright Infringement in the Political Spotlight). In defense of its ads, the Conservative party argued by analogy that such use of copyrighted material for political purposes would be “fair use” in the United States.

ABC Sports has a chance to test that theory.

Last Wednesday, former Governor and Republican presidential candidate Tim Pawlenty began running ads comparing his underdog political campaign to the 1980 United States Olympic hockey team and its “Miracle on Ice” win over the Soviet Union. In the ad, Pawlenty freely uses footage and voice-over sound owned by ABC Sports. Pawlenty’s campaign didn’t bother to seek permission from ABC Sports, claiming protection of the fair use doctrine.

The next day, the Des Moines Register reported that ABC Sports was considering issuing a cease and desist order to the Pawlenty campaign. However, the broadcaster later dialed it back, stating that it hadn’t yet decided what to do.

Pawlenty’s campaign is currently attracting only about 3% of likely Republican voters, according to polls. His campaign’s slow fade into obscurity may therefore render ABC Sports’ concerns moot as a practical matter. But what if Pawlenty’s bid to associate himself with bygone sporting glory rallies the voters, and the “Miracle on Ice” footage ends up getting used in thousands of Pawlenty ads across the country, not just a few in Iowa? Will ABC Sports act, or just let it go? Time will tell, but for now it appears that ABC Sports is going to stick to the hockey arena and stay out of the political one. Some full-contact sports are just too rough.