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February 28, 2012 / Erach Screwvala

Tom Brokaw, Pitchman?

What’s the saying about politics and bedfellows?

In his quest (which seems to have worked) to take Newt Gingrich out of the Republican presidential race, candidate Mitt Romney sought to highlight the former Speaker’s ethical woes in the 90s when he was a member of Congress. In what I think is an unusual political ad, the Romney campaign turned to former NBC News anchor Tom Brokaw to make the case. You can watch the ad, dubbed “History Lesson”, here.

The ad features little more than an image of a television on a plain gray background. On the television is a clip of Tom Brokaw from a broadcast of NBC Nightly News which aired on January 21, 1997, in which he reported that Congress had found Gingrich guilty of ethics violations. At the end of the brief report, the candidate in voice over utters his approval of the ad while a Romney for President still appears on screen. About six seconds from the end, the ad displays the words “Paid for by Romney for President, Inc; Approved by Mitt Romney.”

Brokaw criticized the use of his image in the ad, stating “I am extremely uncomfortable with the extended use of my personal image in this political ad.  I do not want my role as a journalist compromised for political gain by any campaign. NBC has also called upon the Romney campaign to stop running the ad. The Romney campaign has resisted thus far, arguing that the use of the image is protected under the fair use doctrine. We’ve written about parody, one form of fair use, here.

How does this ad stack up on the fair use scale? Let’s start by going over the nearly alliterative four fair use factors. The four factors, codified in the Copyright Act at 17 U.S.C. §101 are:

1. The purpose of the use, such as whether it is for commercial or nonprofit purposes;

2. The nature of the underlying copyrighted work;

3. The amount of the copyrighted work copied; and

4. The effect on the market or value of the copyrighted work.

It being a political ad, the first factor probably goes in Romney’s favor.  And given that we’re talking about a clip of less than thirty seconds from fifteen years ago, the fourth probably favors Romney as well, largely because it seems unlikely that the clip has much value left. And then there were two.

So, what is the underlying copyrighted work? The clip is simply the anchor and a photo of Gingrich. Although the thrust of the report is the finding of guild by Congress, the report also includes information about Gingrich’s successful efforts to bring down Speaker Jim Wright on ethics charges several years earlier. But, there is nothing about the clip itself that suggests that NBC or Brokaw intended to editorialize the report on Gingrich. In fact, it’s probably safe to assume that neither NBC nor Brokaw would suggest that the report was an attempt to editorialize on the subject. So, if there is no editorializing, is there any protectable expression? The facts themselves are clearly not protectable, so what would be left?

The third factor, the amount of the work used raises an interesting question. The ad features roughly thirty seconds of a broadcast lasting nearly thirty minutes. If we define the copyrighted work as the entire broadcast, then a thirty second clip does not seem substantial. But is that the right way to look at it? It certainly appears that the clip encompasses the entirety of NBC’s reporting on the Gingrich story. Viewed in this more limited fashion, one could argue that the entirety of the copyrighted work is used.

On our informal fair use scorecard, it looks like Romney would have the better argument, but are there other arguments that NBC and Brokaw could make? For example, could Brokaw assert a claim based upon a right of publicity? Could NBC make a claim for false designation of origin? We’ll leave those questions for another time.


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