Youtube has pulled the McCain ad "Lipstick" claiming that CBS Interactive has claimed copyright infringement: "This video is no longer available due to a copyright claim by CBS Interactive Inc." Having read the transcript for the video, the couric clip appears to fall within the fair use exception of copyright law, making the decision to pull the ad political. Youtube (Google) and CBS are pretty clearly pulling the ad for political reasons, not copyright reasons.
Here is the McCain Press release:
McCain-Palin 2008 Launches New Web Ad: "Lipstick"
ARLINGTON, VA -- Today, McCain-Palin 2008 released its latest web ad, entitled "Lipstick." The ad highlights Barack Obama's "lipstick" comments yesterday in Virginia. While he may not be ready to lead, Barack Obama is ready to smear.
GOVERNOR PALIN: Do you know, they say the difference between a hockey mom and a pit bull: lipstick.
CHYRON: Barack Obama On: Sarah Palin
BARACK OBAMA: Well, you know, you can, you know you can...put...uh...lipstick on a pig...it's still a pig.
CHYRON: Katie Couric On: The Election
CBS' KATIE COURIC: One of the great lessons of that campaign is the continued and accepted role of sexism in American life.
CHYRON: Ready To Lead? No
Ready To Smear? Yes
AD FACTS: Script For "Lipstick" (WEB :35)
CHYRON: Sarah Palin On: Sarah Palin GOVERNOR PALIN: Do you know, they say the difference between a hockey mom and a pit bull: lipstick.
Governor Palin: "Do you know, they say the difference between a hockey mom and a pit bull: lipstick." (Governor Sarah Palin, Remarks, St. Paul, Minnesota, 9/3/08) CHYRON: Barack Obama On: Sarah Palin BARACK OBAMA: Well, you know, you can, you know you can...put...uh...lipstick on a pig...it's still a pig.
ABC News: In Lebanon, VA, Barack Obama Said "You Can Put Lipstick On A Pig ... But It's Still A Pig" In A Comment That Left Some Thinking He Was Talking About Governor Palin. "'You know, you can put lipstick on a pig,' Obama said, 'but it's still a pig.' The crowd rose and applauded, some of them no doubt thinking he may have been alluding to Alaska Gov. Sarah Palin's ad lib during her vice presidential nomination acceptance speech last week, 'What's the difference between a hockey mom and a pit bull? Lipstick.'" (Jake Tapper, "Obama Says McCain Is Offering Fake Change: 'You Can Put Lipstick On A Pig, But It's Still A Pig'," ABC News' "Political Punch" Blog, http://blogs.abcnews.com, Posted 9/9/08)
CHYRON: Katie Couric On: The Election CBS' KATIE COURIC: One of the great lessons of that campaign is the continued and accepted role of sexism in American life. CHYRON: Ready To Lead? No. Ready To Smear? Yes.
On Online Video, CBS News Anchor Katie Couric Said "One Of The Great Lessons Of That Campaign Is The Continued And Accepted Role Of Sexism In American Life." "Ms. Couric posted a video on the CBS Web site on Wednesday about the coverage of Mrs. Clinton. 'Like her or not, one of the great lessons of that campaign is the continued -- and accepted -- role of sexism in American life, particularly in the media,' Ms. Couric said. She went on to lament the silence of those who did not speak up against it." (Katharine Q. Seelye and Julie Bosman, "Critics And News Executives Split Over Sexism In Clinton Coverage," The New York Times, 6/13/08)
The US copyright office website has the following to say about the fair use
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
FL-102, Revised July 2006
Clearly, a political commercial in which a snippit of video used for the purpose of comment and criticism is CLEARLY in the fair use exception. It is absurd to claim copyright infringment for that... if that is copyright infringment, then about 70% of the videos on youtube are going to have to come down.