“What He Said.” The Transformative Potential of the Use of Copyrighted Content in Political Campaigns —or— How a Win for Mitt Romney Might Have Been a Victory for Free Speech

Deidré A. Keller · 16 Vand. J. Ent. & Tech. 497

Abstract

In January 2012 Mitt Romney’s campaign received a cease-and-desist letter charging, among other things, that its use of news footage concerning Newt Gingrich’s ethics problems in the House of Representatives constituted a violation of NBC’s copyright. This is just the latest such charge and came amidst similar allegations against the Gingrich and Bachmann campaigns and in the wake of similar allegations against both the McCain and Obama campaigns in 2008. Such allegations have plagued political campaigns as far back as Reagan’s in 1984. The existing literature is nearly devoid of a consideration of such uses as political speech protected by the First Amendment. Rather, scholars tend to focus on fair use. Courts have considered this question very rarely and also tend to concentrate on fair use. Because these cases rarely progress to decisions, there is little to be said of what courts have done but much to be said of what they ought to. This Article engages in a thought experiment of laying out the legal analysis in the case that will never be—NBC v. Romney—arguing that when copyrighted content is marshaled to advance a political message, copyright ought to yield to the First Amendment.