Why using movie clips in a political ad exposing paid actors masquerading as steelworkers is fair use

Republican Ohio Congressman John Kasich released a video showing an actor dressed as a steelworker, pretending to be an average local citizen who was upset with Democrat Governor Ted Strickland's performance. The Ohio Democratic Party countered by putting up a YouTube video showing that the "steelworker" was actually a paid actor called Chip Redden, illustrating the claim with clips from Redden's career.

But Arginate Studios, LLC, one of the production companies responsible for one of the Redden film clips, objected to the use of the clip, and had the video removed from YouTube with a copyright claim. As the Electronic Frontier Foundation's Kurt Opsahl explains,

As an initial matter, the use is extremely transformative (adding new meaning and message). The original video by Arginate is an entry in a film festival's "Road Movie" genre, featuring Redden as Sam Carpenter, a man who provides some special tickets to two women in a bar. The political video's use, on the other hand, was to provide evidence that the supposed steelworker was actually a paid actor. The use could hardly be more transformative. As the Supreme Court explained, transformative works "lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright."

Moreover, the political ad only used a few seconds of the original film. While courts have held that "entire verbatim reproductions are justifiable where the purpose of the work differs from the original," a fair use is particularly justifiable when it uses the minimum necessary to make its point.

Since the original remains available for free online, it can hardly be said that there is any harm to the market for the original work. As the Supreme Court said, "a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create."

Finally, fair use analysis considers whether the new work benefits the public interest. Communicating with the public about an upcoming election is a core aspect of public debates, and the new video contributes to that debate.

Copyright Abuse in Ohio Governor Election

• [Anonymous]

  Sounds like fair use to me, showing a person who became public in a political debate. It also seems to me that copyright is not meant to act as a shield against 1st amendment arguments, but to protect creative works. For shame You Tube.

• [pencilbox]

  A similar thing just happened in WV (without the copyright claims -yet). http://www.politico.com/news/stories/1010/43254.html

  From the casting call:

  - We are going for a ‘Hicky’ Blue Collar look. These characters are from West Virginia so think coal miner/trucker looks.

• [Laroquod]

  The law certainly does NOT say that you can’t profit from using a clip of someone’s work without permission for the purpose of criticism.

• [Anonymous]

  For a helpful “play by play” of Fair Use Doctrine see FORA.tv video http://fora.tv/2009/07/31/Fair_Is_Fair_Copyright_Act_and_the_Fair_Use_Doctrine#fullprogram

• [minamisan]

  Anyone who believes the faces they see in political ads (either side) are ‘real’ people is living in a fantasy world.

• [Gawain Lavers]

  One immediately sees Arginate Studios real interest in this — if politicians get humiliated every time they use paid actors pretending to be citizens in their advertisements, the actors are going to stop getting those lucrative jobs.

• [FilmDude]

  The point of the matter is that these clips with used without permission. Nobody even asked, they just stole it from the Internet. Fair use implies that it can be used for academic, research, scholarships, parody and critical applications. None of these things apply. For a party who claims to be for the little guy… the working man… they don’t seem to have any problems usurping those rights for their own political game. If a clip from LOST had been used (which the actor also appeared in), you had better believe that Hollywood would have swooped in and cried foul.

  And think what you want, nearly ALL candidates use actors in some way or another in their political ads. Nearly all issue based political ads do the same. This is nothing new, but it is a deflection from an already unsuccessful political campaign.

  • [Brainspore]

    You win the “missed the point entirely” award for today.

• [ADavies]

  “…who was upset with the performance of Democrat Governor Ted Strickland’s performance”

  Shameful proof reading Cory. (Though not as shameful as Kasich’s attempt to deceive the people of Ohio!)

• [Anonymous]

  As a local filmmaker who knows some of those victimized by this ad my concerns are:

  1. Chip has an acting career that included appearances in Safe Auto commercials and even as an extra in Lost…as mentioned in the Artical released by the ODP… however only micro-budget shorts appear in the ad…

  2. For those of us making these films it’s extremely scary that our work on narrative fiction may be used by political organizations simply because one actor appeared in a political ad at any point in the future.

  3. Editing together a string of insults isn’t exactly adding to the political debate.

  4. 0:31 clearly adds the other actors as part of the political narrative

• [Anonymous]

  I hope they file a counter-notice, and this would make a good sample case to fight the DMCA on first amendment grounds, since it’s literally political speech.

• [rtresco]

  I totally want to go download some tuba right now. I don’t know why I never considered running to some Sousa before…

• [Anonymous]

  “Fair use implies that it can be used for academic, research, scholarships, parody and critical applications.”

  If you’re going to conveniently leave out “news reporting” you probably should have also left out “critical applications.”

• [Anonymous]

  For the record, the video is back on youtube

• [Anonymous]

  I see amendments to the fair use laws in the near future…

  And hey, the ad is pretty lame anyway, actors are often used for political ads since regular people can hardly formulate a thought let alone a complete sentence when on camera.

  Although the ad may subversively and deceptively fall under the fair use guidelines it falls way outside the spirit and intent of the law and is completely irresponsible. Things like this almost beg for abuses such as Peter’s ‘response’ ad (which is quite funny btw)

  Also, the law says they aren’t supposed to profit from the use of our work, which would infringe on our ability to make money from it. Well if the ad works as they wanted it to, some one will profit for sure.

  Even the admaker got paid and profited from not having to re-create all the snippets and clips he used in the ad. It would be a whole different story here if the admaker had contacted Mr Redden and shot similar scenarios himself, hiring actors as extras, a crew, etc. He would be the filmmaker and Redden would sign off on it like all other projects.

  Sadly it sounds like the fair use law does allow for this kind of mudslinging political fare, but it’s far from fair.

• [EeyoreX]

  All of the things said above are true, and none of them really matter, since YouTube isn’t public property. YouTube is a company who wants to turn a profit, and their de facto policy is to block a video at the first sign of any hassle, regardless if the claims made are valid or not. Who can blame them really? They hand out free server space. That’s actually all they want to do.

  Fighting legal battles over this would just be a waste of resources.
  If you want to change things, or send YouTube a message, the best way is to go to someone else and play for a while. Wich is evidently beeing done, seeing as the video is still up at Vimeo.

  • [Anonymous]

    Well yes, the response to this would be to host it themselves, although they would probably get far fewer hits, and most of those from supporters who’ve already made their decision.