An ad for Robin Carnahan’s U.S. Senate campaign uses about 30 seconds of Fox News Network footage from reporter Christopher Wallace’s interview with Roy Blunt. Blunt is Carnahan’s opponent for the Missouri seat in the U.S. Senate. Fox filed a lawsuit against Robin Carnahan for Senate, Inc. on September 15 with three claims:
Fox Claims that Carnahan Infringed the Copyright in the Fox News Footage
The Carnahan campaign has a credible fair use defense. The commercial provides political commentary, uses under 30 seconds from the interview; and should have little negative impact on Fox’s ability to continue marketing the footage.
The Carnahan campaign has filed a motion to dismiss Fox’s copyright claim based on a procedural error. The Copyright Act requires that a copyright claim be registered with the U.S. Copyright Office prior to the copyright owner filing a lawsuit for copyright infringement. Fox completed its copyright registration on September 20 but filed the Carnahan lawsuit five days earlier on September 15.
I’m not certain what Carnahan gains from this motion strategically. It seems unlikely that this motion would rid Carnahan of the lawsuit entirely. Instead, the court is more likely to allow Fox to amend or re-file its complaint to correct the technical error. The resulting delay seems at odds with Carnahan’s expressed desire to resolve the lawsuit quickly.
Fox Claims Carnahan Violated Wallace’s Right of Privacy by Misappropriating His Likeness
This seems like a weak claim by Fox. Misappropriation claims are governed by state law. I haven’t researched law specific to Missouri so I am speaking in generalities. Traditionally, misappropriation focuses on emotional or mental harm. The Carnahan ad excerpts Wallace’s actual words in a manner that does not seem to “intrude upon Wallace’s private self-esteem and dignity; and cause him emotional or mental distress and suffering” as the Fox complaint indicates.
A common defense to misappropriation is newsworthiness. In other words, using someone’s image is not actionable as long as the depiction is reasonably related to a matter of public interest. That defense seems to apply here as the footage of Wallace’s interview is used for discourse about the election of a U.S. Senator.
Fox Claims Carnahan Violated Wallace’s Right of Publicity
The right of publicity prohibits anyone from using your name or image for a commercial purpose without your permission. This may be Fox’s strongest claim against Carnahan if it can convince a jury that the Carnahan ad misleads viewers into believing Wallace endorses Carnahan. One hurdle for Fox on this claim would be convincing a jury that Carnahan’s political ad has a commercial purpose.