Digital Media and Data Privacy Law Blog

In a truly unusual move, Fox News Network and one of its highest profile journalists, Chris Wallace, filed a lawsuit earlier this month against the campaign of Robin Carnahan, a candidate for U.S. Senate from Missouri.  The lawsuit, which you can read here, alleges claims for copyright infringement, invasion of privacy by misappropriation of likeness, and invasion of the right of publicity by misappropriation of identity.

Those claims arise out of Carnahan's use in a campaign ad of a 24-second clip of Wallace questioning Carnahan's opponent, Roy Blunt, in 2006.  According to the complaint, the ad infringes on Fox News' copyrights and misappropriates Wallace's image and identity.  The complaint also alleges that this use was for commercial profit because the ad is available on Carnahan's website, along with links to donate to the campaign or buy campaign paraphernalia.

Carnahan responded to the complaint, filed in federal court in the Western District of Missouri, by requesting that the Court expedite the briefing in order to resolve the case before the November election.  Fox News and Wallace filed an opposition to that motion.

Some observers have called the lawsuit "bogus," but it does raise a host of interesting questions for political candidates, news operations, and broadcasters.

Of course, showing news clips is the bread and butter of political advertising -- both positive and negative.  Most news operations are happy for the publicity.  In this case, however, Fox News and Wallace assert that the use of the clip falsely indicates to viewers that Fox and Wallace have endorsed Carnahan in the race.  

The complaint itself, however, undercuts the plaintiffs' claim of neutrality.  The very first sentence of the pleading starts: "In a smear ad against political rival Roy Blunt . . . ."  Moreover, according to Slate, the lawyer representing Fox and Wallace has also worked for Blunt.  Notably, according to other reports, Blunt himself has used news footage from cable networks, including Fox, in his own ads.

With all that in mind, the line between copyright infringement and "fair use," is not always clear, and journalists may have a legitimate reason to object to the use of their image and words to attack (or bolster) a political candidacy.  A particularly long clip, a clip that is edited to change the meaning of the journalists' words, or a clip that truly is used solely for commercial gain may draw an appropriate objection.

It is not clear from the complaint how the Carnahan ad is different from the run-of-the-mill political ad in how it uses the clip, and the ad has been taken down from Youtube and the Carnahan website.  The Kansas City Star newspaper describes the ad as follows:

The ad features Wallace questioning Blunt, who at the time was running for House majority leader.

You just said a moment ago that you have to show that you’re the party of reform,” Wallace says to Blunt. “You have to show that to voters. But some question whether you are the man to do that.”

Wallace continues, describing a 2002 incident where Blunt tried to insert legislation into a homeland security bill aimed at benefiting the Philip Morris tobacco company “while you were dating that company’s lobbyist.”

“Since 1999,” Wallace said in the interview, “you’ve received at least $429,000 in campaign contributions from lobbyists. And your campaign committees paid $485,000 to a firm linked to lobbyist Jack Abramoff. Are you the one to clean up the House?”

The ad ends with Blunt looking at Wallace.

We will keep you posted as this lawsuit moves forward in the coming weeks.