Why Romney's Campaign May Have Tough Time Proving "Fair Use"

Mitt Romney's campaign claims that their use of a clip of President Obama singing portions of Al Green's "Let's Stay Together" was "fair use," but the attorney who has represented artists in two of the most celebrated recent cases of campaign copyright trouble doesn't see it that way.

Attorney Larry Iser represented Jackson Browne and David Byrne in their suit against two Republican candidates who used their music without permission. In 2008, Browne sued John McCain, the RNC and the Ohio Republican Party for the use of "Running on Empty" in a campaign commercial, which led to a high-figure settlement an apology. In 2010, Byrne sued then-Florida Gov. Charlie Crist for the use of "Road to Nowhere" in a campaign spot, leading to a settlement and a rather infamous videotaped apology from Crist himself.

Earlier this week, YouTube took down the Romney campaign's spot, citing a takedown request from BMG Rights Management. The Romney campaign defended their use of the footage as "100% proper," which conservative bloggers and some digital rights activists saw the takedown as an assault on free speech.

But Iser said that the notion that the use of the Obama footage is "fair use" because it is a public figure singing merely a few bars at an event in the public interest misinterprets the intent of the "fair use" standard. The exception is for commentary or criticism of a copyrighted work, and "they are not commenting on the Al Green song, if you will. They used it to attack President Obama and his donors. They are not using it to comment on the copyrighted work."

On Monday, after the clip was removed, an AP video clip of Obama remained on YouTube, leading to complaints that there was a double standard: BMG had the clip removed in one instance and not in another.  While AP could claim the "hot news" exception in covering a news event, YouTube faced a "synchronization license issue" in posting the video, Iser notes. It, too, has since been removed.

Iser also says that it is not a defense on the part of the Romney campaign to claim a double standard, as the owner of a song "gets the right to choose" whether to enforce a copyright or not. Al Green, who co-wrote the song, is also an Obama supporter, and could have concerned about his right of publicity and false endorsement. Republicans grouse that it is often their side that are hit by such copyright claims because the music business is dominated by liberals, and there may be some truth to that. (Green's rep did not respond to requests for comment.)