Abusing Fair Use: Is It Time to Clarify the Fair Use Doctrine in a Political Context?

It happens every year; a candidate for political office runs a campaign advertisement using copyrighted or trademarked material without the owner’s permission. From Governor Mitt Romney using a 30 second clip of an episode of NBC’s “Nightly News” program hosted by Tom Brokaw, to President Barack Obama using footage of MSNBC’s Andrea Mitchell commentary on the first presidential debate, the campaigns are constantly pushing the envelope. Recently, the AARP and Sesame Street have entered the scuffle requesting the campaigns to stop using their trademarks in campaign material.

Even with these complaints, the campaigns continue to use the intellectual property without the permission of its owners. Campaigns sometimes hide behind the fair use doctrine, while other times they just ignore the request and outright refuse to comply. This strategy could be considered intentional and implemented by the campaigns to gain free press; even if the campaign decides to take the video down after it receives a cease and desist letter, the television and internet media will have already showed the unauthorized content multiple times free of charge to the campaign. Campaigns are certainly abusing the fair use doctrine.

What does this cat-and-mouse game say about our legal system’s ability to protect intellectual property owners and their rights? Is the ambiguity of the fair use doctrine actually doing more harm then good? Should the doctrine be clarified, at least, when applied in a political context? Regardless of what your answer would be to these questions, it is clear that campaigns raising an alleged “fair use defense” anytime they are caught using unauthorized content is certainly doing an injustice to our legal system by distorting the public’s perception of when the fair use doctrine actually applies.