McCain Responds To Jackson Browne Lawsuit: Here's How Fair Use Works...

from the indeed dept

During the presidential campaign, we noted that singer Jackson Browne had sued the McCain campaign for the use of one of his songs in a commercial. The McCain campaign has filed a response to the lawsuit, first noting that it wasn't the McCain campaign that used the song in an ad, but the Republican Party of Ohio. Second, the campaign points out that the use of the song probably qualifies as fair use:
"Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine."
Of course, between this and the McCain campaign's attempt to get YouTube to apply different fair use rules to presidential campaign videos, it makes you wonder if Senator McCain will actually try to do something in the Senate to improve copyright law to make fair use more explicit and make it clear that it covers these sorts of actions. Somehow I doubt it.

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  1. identicon
    joe, 21 Nov 2008 @ 6:30pm

    Fair Use

    It amazing how some lawyers will twist and turn to avoid truth, reality and established law. Here is a quote from the US Copyright Office at http://www.copyright.gov/fls/fl102.html

    START

    Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

    1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

    2. the nature of the copyrighted work;

    3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    4. the effect of the use upon the potential market for or value of the copyrighted work.

    The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

    END QUOTE

    Note that Fair Use does not include the unauthorized use of copyrighted material in a partisan political advertisement. Further, it is an outrageously cynical and extra-legal argument that taking someone's property helps revive sales. The decision as to how to promote sales of an old song is the sole right of the person who owns the copyright.

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