From the Winter 2001 issue of The News Media & The Law, page 10.
By Dan Bischof
Less than two weeks before the election in 1998, a two-year-old Christian radio interview with Republican candidate Molly Bordonaro surfaced in her campaign for Oregon’s 1st District in the U.S. House. In the interview with Portland radio station KKPZ, Bordonaro, who projected herself as a moderate during the campaign, offered more conservative positions, including support for school vouchers, a flat tax and eliminating the IRS.
KKPZ claimed it had a protected property interest in the interview. Although it requested that the interview not be released, the station elected not to litigate the issue when the transcript was published on the Internet and Bordonaro’s opponent began using snippets of the interview in television ads.
The radio station confronted an uncomfortable issue many media outlets face during election seasons: what to do when political candidates use news and editorial content in political advertisements. The choice not to contest the usage can carry consequences in the election booth and to the intellectual property rights of the media outlet.
Willamette Week, a Portland weekly newspaper, published a transcript of the KKPZ interview on the Internet, and the Web site of her opponent, David Wu, linked to it. For the next two weeks, Wu also aired excerpts from the interview in commercials.
“We didn’t feel like it was worth taking any action on and so they just got away with it,” James Autry, KKPZ’s station manager, said. “It’s just not worth our time, effort and money to do so.”
Bordonaro spent the weeks between the tape’s surfacing and election day fighting the perception that she had flip-flopped on the issues.
“It really knocked Molly off her balance. It put her in a defensive mode from that point on,” said Brad Cain, who covered the race for the Associated Press.
Before the ads started running, a poll published in The Oregonian showed Bordonaro slightly ahead of Wu. But by election day, the lead evaporated and Wu went on to win, gathering 53 percent of the district’s vote to 44 percent for Bordonaro.
But use of copyrighted material against an opponent is not the only issue; when political candidates or political issue groups use news content in campaign ads, the media are made unwitting endorsers of candidates or issues. News organizations also may risk waiving copyright protection for their content.
The problem of political candidates using media content for campaign purposes is not limited to Oregon, and the issue crops up every election season. The St. Paul Pioneer Press, for example, fights candidate usage once or twice per election cycle, according to editorial page editor Ronald D. Clark.
Clark said the Minnesota newspaper objects, “from a news standpoint, so as not to give readers and public any impression that the newspaper is trying to advance one candidacy over the other or cooperating with one candidate over another. From the opinion side, (the paper objects) so that our analysis of a race and endorsement in a race is not misrepresented.”
“Often times it happens not with an individual candidate, but with a public interest group that sees an article that discusses the issue and tries to reprint it in total,” said David Bralow, senior counsel for Florida media, at the Tribune Company. “Candidates are more likely to excerpt, that way they take the good or the bad, and not show the balanced article.”
At least three media organizations have publicly battled with political candidates over the use of news or editorial content in campaign ads in the recent election cycle.
In Missouri, C-SPAN tried to force U.S. House candidate William Federer to stop showing a 30-second advertisement that consisted almost entirely of its footage of Federer’s opponent, House Minority Leader Richard Gephardt, speaking at a National Gay and Lesbian Task Force dinner. The advertisement began with the opening scene of C-SPAN’s usual program and showed the network’s signature photograph of the Capitol from its Washington, D.C. office. The commercial made liberal use of both C-SPAN footage — including an introduction by its announcer — and its logo.
In Tulsa, Okla., two television stations asked U.S. Rep. Brad Carson to halt an ad that showed his opponent Andy Ewing in a KJRH election segment. The ad also used material from KOTV. The television stations made public and private entreaties to Carson, who initially refused to pull the ad.
In Minnesota, The St. Paul Pioneer Press filed a lawsuit against then-Sen. Rod Grams for using Pioneer Press photos in a television ad attacking his opponent, Mark Dayton. The lawsuit caused the newspaper to avoid endorsing a candidate because it was concerned that “readers will see us as neither detached nor disinterested” in the race.
Candidates claim fair use
Most of the media challenges to the candidates’ appropriation are based on copyright law, which protects original works of authorship from unauthorized copying. But political candidates claim their use of news copy is “fair use,” the doctrine of copyright law that allows limited copying of copyrighted works for purposes such as news reporting, criticism and teaching.
In the Missouri case, a federal district judge agreed that Federer likely violated C-SPAN’s copyright and granted the network an injunction, forcing Federer to shelve the ad on Oct. 30. But three days later, Federer made an emergency appeal to the U.S. Court of Appeals in St. Louis (8th Cir.) to halt the district’s court injunction. In a terse order, the appellate court allowed the ad to be played but required that no marks or logos identifying C-SPAN as the source of the speech be shown.
“The trial court judge just issued too broad of an injunction,” said Tom Federer, the candidate’s brother and an attorney of record on the case. “First Amendment rights and political free speech have prevailed.”
The district court judge dismissed the fair use argument. “The fact that every second of defendant’s 30-second commercial contains C-SPAN material also weighs against fair use,” the judge wrote. The court also said allowing the commercial to run would significantly harm C-SPAN’s credibility.
The appellate court disagreed and only affirmed those parts of the district court’s order that prohibited the use of service or trade marks, the other intellectual property area where media organizations may seek relief in such cases. Trademark law protects consumers from confusion over the source of products. C-SPAN attorney Mark Sableman said that the ad’s liberal use of the network’s logo and accouterments, known legally as trade dress, would confuse viewers.
“Here the most egregious thing was that the viewer wouldn’t know — even until they were 90 percent into it — that it was anything other than a mini-C-SPAN report,” Sableman said.
Sableman also argued that Federer’s ad diluted or tarnished C-SPAN’s trademark.
“C-SPAN is absolutely, relentlessly non-partisan and feels that’s essential to their image,” he said. “It is also very committed to doing un-cut, unexpurgated, full gavel-to-gavel coverage. So it is very upset about being associated with sound bites.”
But the C-SPAN case is unique. Aside from the signature Capitol shot, announcer introduction and network logo, the C-SPAN footage was merely video of Gephardt speaking. The footage lacked any editorial comment or original news writing that might garner more significant copyright protection.
Cases quickly disappear
There have been few decided cases that have determined whether candidates’ use of news content is fair use under copyright law.
In one federal district court case out of New Hampshire in 1978, the court held that one candidate’s use in a commercial of a song copyrighted by his opponent was fair use. The court noted that the use did not affect the song’s sales; one element of a fair use analysis is the effect of the use upon the potential market for or value of the copyrighted work.
Another element of the fair use analysis is how much of the copyrighted work was copied; the more copied, the less likely a court will find the use was fair.
One reason so few cases exist is the speed with which such cases must be pursued. For example, in the C-SPAN case, although Federer was able to stop the injunction before the election, the court never reached a decision on the merits because the issue was moot after Election Day. As a result, the parties mutually agreed to dismiss the case.
Another reason for the rarity of cases is because after media outlets complain, many campaigns elect to pull ads before media organizations force them into court or before courts can reach decisions. In 1992, the Bush-Quayle campaign produced a 30-second commercial that highlighted a Time cover showing an unflattering negative image of Gov. Bill Clinton. Federal district court judge Gerhard Gessell rejected a Time request for an injunction to halt broadcasting of the commercial, but the issue became immediately moot once the campaign dropped the ad.
The Tulsa World reported on Oct. 19, 2000 that the Carson congressional campaign, citing the fair use doctrine, vowed to continue running the ads over the stations’ objections. But Bill Donahue, KJRH’s general manager, said the campaign shut down the ad after two or three days. Donahue said he met with Carson after the election, and the sides cordially discussed the subject.
“The sense you get about any of the politicians is that if their marketing and TV folks don’t push the envelope, they don’t feel they’re getting the most out of the opportunity,” Donahue said.
The case involving the Pioneer Press is also being dismissed pursuant to a stipulated agreement signed by both sides, according to Tony Trimble, the attorney for Grams. Trimble said Grams never answered the complaint, but instead filed a motion to dismiss the complaint based on the fair use defense. The newspaper later suggested the lawsuit be dismissed, he said, and the former senator agreed. The Pioneer Press did not return calls for comment.
Media organization approaches to campaign ads vary. Some will permit candidates to use their content, but require that it be copied in whole and that candidates avoid selectively editing news or editorial content.
“The only occasion that I would have a problem is if the politician uses our endorsement out of context, and in that case we would take legal action,” said Jeff Wilson, publisher of The Athens (Ga.) Daily News.
“No. Never litigation. That’s not our business,” said Mark Zusman, editor of The Willamette Week. “What burns us sometimes is when (candidates) use (endorsements) in a way that is deceptive. When they pull quotes to suggest we are endorsing them and we are not. Our response traditionally has never been to sue, but it’s been to write about it.”
Clark said the Pioneer Press has a dual policy for content from the newsroom and the editorial page. With respect to editorial page material, candidates may use endorsements only if the candidate uses it in its entirety. A candidate may not, however, produce a look-alike newspaper, using the same font type or newspaper logo.
“We do not want people to think that the Pioneer Press itself is running off flyers and handbills of our endorsement and trying to give the endorsement a life beyond our editorial page,” Clark said.
Candidates may also state that the newspaper has endorsed them, but must include the date of the endorsement, Clark said.
“Ideally, the way it should work, I suppose, is that when filing deadline comes around we get a list of all the candidates and we send them out a letter saying, ‘This is our policy, you are forewarned, and don’t violate it. If you do we’ll take you to court,'” Clark said.
Although the newspaper has the policy in theory, Clark said in practice they do not necessary provide candidates with timely notice. As a consequence, the newspaper does not aggressively penalize a candidate for unknowingly breaking the editorial page rule, he said.
On the news side, the newspaper forbids any reproduction of news content or photographs, he said.
Most media attorneys and news directors agree it’s important to fight the issue, no matter what weapon is used.
“If you allow something that is your copyrighted material to go unchallenged and force that withdrawal, you’ve set a precedent that may allow violation of that copyright without penalty in the future,” Donahue said. “So you have to be ever vigilant.”