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August 13, 2006

opps! even a governor is subject to federal copyright law

I love the political season – which seems to be never ending these days.  Politicians kissing babies, shaking hands and asking for contributions – and those campaign commercials, can you really think of anything that displays American mores and values more than political commercials? 

As you might assume – the above is a bit snarky and disingenious.  Truth is – I am tired of all the election hoopla as are –  I am sure – the vast majority of Americans.

Well, other than voter backlash, campaigns also need to take into account the pesky federal copyright laws.  Ignore them, and suffer the wrath and ire of the creator.

Object lesson:  the Pennsylvania Gubernatorial campaign of Edward Rendell (official Pennsylvania Governor Website).  It appears that Mr. Rendell has republished and “remessaged” at least one editorial written about his opponent by the Pittsburgh Tribune-Review.  This editorial was posted to Mr. Rendell’s campaign website without the permission of the Pittsburgh Tribune-Review.  It was also apparently used in fundraising activities.

The Pittsburgh Tribune-Review was not happy.  They were not amused.  And, they decided to write about it.

Mr. Rendell might keep in mind the quote that has been attributed to Mark Twain:

“Never Pick a Fight with Someone Who Buys Ink by the Barrel”

I would imagine that the Pittsburgh Tribune-Review probably buys ink by the truckload, so it is no surprise that they used such ink (electronic and “old world printed page” to blast Mr. Rendell for wrongfully using their copyrighted editorials.

But when the Trib also chides Republican gubernatorial candidate Lynn Swann -- for either adopting the personnel or ways of the GOP's good ol' pols network (one that's eerily similar to that of liberals and Democrats) -- well, Camp Rendell has been quick to post those editorials and columns on its campaign Web site.

It's the political version of the adage about how the sometimes enemy of your enemy, even if that first enemy is your enemy, too, sometimes can be your friend.

But there's a little problem. It's called federal copyright law. The Rendell campaign never sought permission -- nor would it have received permission had it sought it -- to reformat and reproduce such material in full on its Web site.

Worse, it was using material illegally reproduced to solicit campaign money for Big Ed, based on the proximity of the ill-gotten words to the solicitation ad.

Picking a fight with a newspaper is probably not the best of ideas – even if it is over a pesky copyright issue.  Mr. Rendell’s campaign decided to engage the paper and defend their use of the materials. 

Exposed Sunday last in an editorial, then called on the carpet again last week, Rendell campaign spokesman Dan Fee first, and with little equivocation, defended the practice.

"This has been litigated before and has been deemed to fall into fair use," he wrote in an e-mail. "If you have other information you'd like us to review in order to reconsider, please send it along. But this is actually pretty well established case law."

The paper goes on to basically spank Mr. Fee, a non-lawyer, on his legal interpretation of copyright law — an interpretation that, as the paper pointedly explains, is completely at odds with actual legal precedent. 

So – for you budding politicians reading PHOSITA – be careful what you do and the roles your campaign staffers “play”.  Copyright effects us all – just because you call it “fair use” — doesn’t make it so.  

And for Mr. Rendell’s campaign staffers – you might want to take a look at New York Tribune, Inc. v. Otis & Co., 39 F. Supp. 67 (S.D.N.Y. 1941) (Lexis).

Posted by Douglas Sorocco at 09:12 AM.
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