Romney Ad Offers Clear Example of Copyright Fair Use

Mitt Romney’s political advertisement featuring President Barak Obama singing an Al Green hit is back on YouTube after facing allegations of copyright infringement. The legal dispute involving the advertisement offers a clear example of the fair use doctrine.

The advertisement was removed from YouTube after the website received a notice under the Digital Millennium Copyright Act (DMCA) from music publisher BMG Rights Management, who owns the rights to the song. The takedown notice contended that the Romney’s use of the Al Green’s “Let’s Stay Together” to criticize President Obama’s economic policies violated their copyright.

The Romney campaign subsequently submitted an appeal contending that their use of the song constituted “fair use” and not a copyright violation under the Digital Millennium Copyright Act. YouTube ultimately agreed, and the video is now back up.

In determining whether the video was fair use, U.S. copyright law dictated that YouTube consider the following factors:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for, or value of, the copyrighted work.

In this case, Romney did not seek to profit commercially from his use of the song. In addition, it is recognizably different from the Al Green original recording, as President Obama is the one singing. Lastly, the advertisement only includes a small segment of the copyrighted work and it’s unlikely to affect the value of the song.

If you have questions about whether your use of another’s material in your ad or website is fair use, consult with me before you spend money on development, or worse, make a significant investment, and then find out you can’t use the material.


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