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

Cory Doctorow

10:04 pm Thu, Oct 7, 2010

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.