A recent case filed against Fox News Network suggests that broadcasters should be more wary of third-party political ads that may infringe upon intellectual property rights.
Fox News and anchor Chris Wallace recently filed a suit against Missouri Senate candidate Robin Carnahan’s campaign committee for using about 30 seconds of a Wallace interview with Carnahan’s opponent, Rep. Roy Blunt (R-MO), in a television ad. It is likely that Ms. Carnahan’s committee will assert a “fair use” defense to the claim of copyright infringement to justify its use of the Fox clip. The fair use defense is a highly fact-specific and qualitative doctrine that sometimes allows limited use of copyrighted material without requiring permission from the rights holder, such as for commentary, criticism, news reporting, research, teaching or scholarship. If Ms. Carnahan claims fair use as a defense, however, it is unclear if she will prevail. In Henley v. DeVore, for example, a California federal district court recently rejected a fair use defense and found that senatorial candidate Charles DeVore’s political advertisements infringed upon the copyrights in the Don Henley songs “The Boys of Summer” and “All She Wants to Do Is Dance.” Wallace has also asserted claims of invasion of his right of privacy and publicity and misappropriation relating to use of his persona in the ad.
Notably, Fox News did not file suit against the broadcasters that aired Carnahan’s ad. In fact, the FCC’s rules insulate broadcasters from liability for airing political ads in which there is a candidate “use” because broadcasters have no right to reject or otherwise edit these ads. Broadcasters should note, however, that this same immunity does not apply to ads from corporations and other third parties. In the wake of the Supreme Court’s landmark decision earlier this year opening the door for corporate funding of political advertising in Citizens United v. FEC, the number of third-party political ads is on the rise. Accordingly, broadcasters should take particular care in accepting political advertisements from third parties that may contain the intellectual property or use the persona of others, and should consult with counsel experienced in copyright and right of publicity laws to determine the level of acceptable risk.