This is big.
Over the past week I've been thinking about the Trinity videos (who hasn't?) and what impact they could have in the general election. And one thing I realized was that these were not videos from somebody's home footage, or from news organizations. These are videos recorded and produced by the church itself, and sold on DVD to the public.
In this case, it is very possible that Trinity United Church of Christ holds copyright protection on the videos. While fair use probably allows them to be used in news programs, they could not be used in political ads without permission.
If Trinity has the copyrights (or applies for them), then the Rev. Wright videos may have a lot less impact in the general election than Republicans are hoping for. Right wingers have already called the Rev. Wright videos "manna from heaven". But the footage would be almost useless if they cannot actually be used in attack ads.
This may sound an obscure legal issue, but could have a HUGE impact on the general election.
Blogger Tom W. Fox has considered the same issue:
As the sugar plum fairies of attack ad politics dance in the dreams of Obama’s opponents, and Republicans Drool Over Wright, (yes, that’s the story headline . . . drooling Republicans) there is one big unanswered question yet on the table.
Can the video clips of Rev. Jeremiah Wright Jr. ever be used in political attack advertising without the permission of Trinity United Church of Christ?
Maybe not. There is this legal problem called copyright. Video recordings of Rev. Wright’s sermons were made by Trinity Church, and those videos are sold commercially on its web site. There isn’t much doubt that Rev. Wright’s sermons are original creative content that can rightfully claim protection under the U.S. copyright laws.
Generally speaking, this would prohibit anyone from using the videos without permission.
My advice to Trinity United Church of Christ is to immediately obtain copyright registration for these videos with the U. S. Copyright office. It will make things easier down the road, and it’s not all that expensive.
I haven't seen the actual Trinity DVDs to determine if they claim copyright protection. But I think it would be very smart of the church to apply for copyright protection if they haven't done so already.
This way, no 527 group can spend $100 million playing this footage over and over again in TV ads.
I've already seen at least one Republican attack video that used audio from Rev. Wright's speeches, but did not include video footage. This may be an indication that copyright is already putting shackles on the right wing smear merchants.
(Yes, this won't stop Fox News from airing the footage, but most Fox News viewers aren't going to vote for Barack anyway.)
If you have more knowledge of copyright issues, or know whether these church sermons have been copyrighted, let me know and I'll update the diary accordingly. Thanks!
[Update]: Some have mentioned the Fair Use doctrine and the First Amendment. I will leave it up to those with better legal knowledge than myself to decide this.
But I did consult my girlfriend, who graduated Yale Law School, and her preliminary research indicates that it is an ambiguous issue. There is a "fair use" right to use copyrighted material for educational purposes, but courts have limited this use when there is damage done to the copyright holders.
My advice: Trinity should lock down their copyright, then make it clear to TV stations that violations of this copyright will face legal consequences. Ultimately courts may have to decide on this.
[Update II]: For those who claim that Fair Use allows use of this footage. Does that mean Democratic 527s could use footage from Pat Robertson's 700 Club, or from Rev. Hagee's Global Evangelism Television, without worrying about being taken to court?
Also, when Larry Lessig commented on the Fox News-John McCain imbroglio over Fair Use (where McCain wanted to use Fox News debate footage in an ad), he indicated that Fox News might have the upper hand:
There's no clear authority supporting the idea that taking just a bit of a television clip is "fair use"; the use here is certainly not commenting upon Fox. Senator McCain's "right" (in scare quotes because, as the extremists will lecture, fair use is a defense, not a right) to use the clip as he has is arguable at best. Under the law as it has been articulated by the highest courts, there's no guarantee the Senator's campaign would prevail.
And in that case, where the actual candidates were debating the issues, there was a much stronger case for Fair Use than in the Rev. Wright footage, where Obama is nowhere to be seen and the footage is simply used to smear.
Lots of questions here, no easy answers.