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Hi, SXSW voters! Check out Sherwin discussing political music in campaign ads on NPR here.UPDATE: Looks like many of the video clips covering Obama's original performance have been taken down as well. It's hard to imagine that these clips wouldn't also qualify as fair use news reporting.
So this just happened: YouTube pulled, after a takedown notice from BMG, a Romney campaign ad featuring Obama singing Al Green's Let's Stay Together, with headlines about his ties to lobbyists and campaign donors.
This incident leads to a couple of points worth making about fair use and copyright takedowns.
Fair Use is More than Parody
In comments below the stories covering the takedown, lots of people are pointing out how this isn't a parody of the Al Green song. This is true. However, that doesn't mean it's not a fair use. After all, fair use doesn't just exist to protect parodies. It exists to preserve our ability to speak, debate, and comments on events and culture without having to run around, hat in hand, to copyright holders for permission.
Section 107 of the Copyright Act, which spells out what fair use is, says that fair uses are
for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or researchNote that it doesn't require that the commentary or criticism be of the thing itself. Now, that's probably one of the easiest cases, since we clearly don't want to allow authors to insulate themselves from parody and criticism. And we have a prominent case of satire being denied a fair use ruling because, for instance, a Dr. Seuss-copying book wasn't mocking Dr. Seuss, but rather the O.J. Simpson trial.
But determining what is and isn't fair use isn't as simple as trying to fit a given situation into a pat formula. After all, the whole point of fair use is to make sure that the larger goals of copyright—the progress of knowledge and learning—mesh with the First Amendment and don't subvert those goals just to grant authors more power over their works.
In this case, we wouldn't want politicians to be able to insulate themselves from criticism just because they deploy copyrighted bits of pop culture in their campaign appearances. By singing "Let's Stay Together," Obama is deploying a particular work to indicate aspects of himself as a president and a candidate (as a relatable guy who likes sentimental Al Green tunes)—aspects that the Romney campaign will disagree with and want to subvert and criticize (that Obama, far from being a regular guy, is in deep with big money donors and lobbyists). It's certainly a part of the political conversation; the ad follows on the heels of an Obama campaign ad that featured Romney signing "America the Beautiful," juxtaposed with headlines about Romney's big money corporate ties. As such, these ads are a significant part of the discussion about who the candidates are. Removing bits and pieces of that debate doesn't promote the progress of knowledge, and, incidentally, allowing it to stay up certainly doesn't do much of anything to sales of "Let's Stay Together."
Sure, BMG could have a licensing scheme set up so that the Romney campaign can pay them whenever they want to make fun of Obama's singing, but the mere existence of a license doesn't require that it be paid. There can just as easily be a licensing schedule for parodies—that wouldn't make a parody any less a fair use. The mere existence of licenses of articles and book excerpts for classroom use doesn't require schools to pay those licenses—multiple copies for classroom use are one of the key examples of fair uses. While we want a robust licensing marketplace so that works can be easily used and monetized, the expansion of that marketplace shouldn't mean the erosion of fair use.
Takedowns are Easy to Abuse
Speaking of eroding fair use, this brings us to the actual takedown of the ad. Even the clearest fair use runs the risk of being pulled from online hosts, if those hosts just blindly obey every takedown notice they receive. And why shouldn't they? They face no liability for complying with a properly-formed notice, no matter how bogus the claim might seem. And while the senders of a bogus notice may eventually face liability for their abuse, making them face that music requires the time, money, and willingness to take the question to court. And in the meantime, there's no telling how long the use remains offline and invisible to the wider world.
As we've noted before, the time-sensitive nature of political campaigns means that the loss of time spent in processing a takedown notice and the putback process means that even bogus complaints can have an outsized effect on speech. And as long as candidates and campaigns continue to interface with pop culture, there will be easy ways to block their speech via the DMCA, unless changes are made.
We've proposed some of those changes in the Internet Blueprint. Beefing up the putback process, and making sure that bogus takedowns are more reliably penalized will go a long way towards preventing these sorts of problems in the future, allowing political speech to proceed unimpeded.
There's tons of other ways in which campaigns and copyright intersect. For a look at what happens when musicians object to their songs being played at political rallies, check out this handy guide from last year.