Fox News Channel, McCain Clash Over Debate Ad

Republican Presidential Candidate Used 19-Second Clip from Debate Sponsored by Cable News Network 10/26/2007 10:00:00 AM Eastern

Republican presidential candidate Sen. John McCain (Ariz.) and Fox News Channel are at loggerheads over a campaign ad that uses a 19-second clip from McCain's widely cited "tied up" comment during a Fox News-sponsored debate telecast.

John McCain

McCain was looking to capitalize on the buzz surrounding his TV appearance by using it in an ad he started running in New Hampshire and bicycling around the Internet. Fox News said the ad is copyright infringement; that it asked the campaign to pull the ad but it declined; and that it would sue but for not wanting to give McCain's campaign more oxygen.

The campaign uses the clip, complete with Fox News logo in the corner, to promote McCain's pork-barrel-busting reputation, specifically his comment during the debate on thwarting an attempt by Democratic candidate Sen. Hillary Clinton (D-N.Y.) to fund a Woodstock museum, as well as what he said was "$500,000 for a ‘Virtual Herbarium’ and $1.2 million for research on growing grapes."

In the clip, McCain got a standing ovation from the debate audience for pointing out that he had not gone to the iconic rock concert at Woodstock, N.Y., having been "tied up at the time" -- a reference to the fact that he was a prisoner of war in Hanoi during that period. He got no ovation from Fox News for using its footage.

“We’re thinking of filing a lawsuit," a Fox News spokesperson said, "but that would give McCain’s campaign the oxygen it desperately needs since it’s clear that they have no money.”

Blogs including The Huffington Post and the New York Times political site also picked up on the story.

TV networks are increasingly permitting their candidate footage to be excerpted and otherwise used on the Internet given the emergence of sites like YouTube as places where people congregate to learn about their future political leaders. It can also provide some extra promotion for the network's coverage of an increasing proliferation of debates.

But Fox News said it has a policy against making debate footage available for political ads -- a concern not confined to Fox News -- and it sent the campaign a cease-and-desist order. The campaign had not returned a call at press time, but a Fox News lawyer characterized the response by the McCain people as defending the clip as fair use, citing its relative brevity out of a 90-second debate.

According to a Fox News lawyer, who asked not to be identified, "There is no fair-use argument for the way they are using our footage, the reason being that they are using the footage in a campaign advertisement to elicit contributions to their campaign. That is a commercial purpose for the use of our footage, which is nowhere near allowed under a fair-use argument … What they're doing is copyright infringement. It's never a fair use to take the copyrighted material of a third party and use it for your own commercial purposes."

"Our legal team has full confidence that the campaign's minimal use of Senator McCain's own comments in the debate clearly constitutes fair use under the copyritght law," said campaign spokesman Brian Rogers.

Sherwin Siy, staff attorney for fair use advocate Public Knowledge, agrees, saying he thought McCain had a "very good argument for fair use" for the 19-second excerpt, adding that the fact that it was used in a commercial did not mean that fair use shouldn't apply. "This is not the sort of free speech Fox has the right to prohibit under copyright law," he said.

That fair-use doctrine grants some use without compensation or permission of copyrighted material for various purposes, including news, criticism and artistic works.

Are any Fox outlets carrying the ad? "I would hope our Fox brethren would not take it," the Fox lawyer said.

Actually, one already did. The campaign aired the ad once on the Fox Boston station in the pregame show for the World Series game Thursday night, hoping to get the viewers in every bar in Boston, according to Rogers.
The campaign is also booked through the weekend in a statewide New Hampshire buy, he said, with no plans to pull it, but currently no plans to air it elsewhere.

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