Fox News sues Democratic Senate candidate

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Fox News sues Democratic Senate candidate

Thu Sep 16, 2010 @ 07:35AM PST

By Eriq Gardner

Screen-shot-2010-09-10-at-3.02.07-PM-300x201 EXCLUSIVE: Fox News and one of its top journalists have filed a lawsuit against the campaign of Missouri senate candidate Robin Carnahan, alleging that the Democrat used proprietary footage in a campaign advertisement to make it appear that the network was endorsing her.

The lawsuit, filed late yesterday in U.S. District Court in Missouri, claims copyright infringement, invasion of privacy and misappropriation of likeness. Fox News and on-air newsman Chris Wallace are demanding an injunction against further use of the campaign commercial and unspecified monetary damages.

Fox News often has been criticized for its political leanings. The cable news network has recently been charged with getting too close to the Republican party by making monetary contributions to the party's gubernatorial candidates. Now, the Rupert Murdoch-controlled company is breaking new ground, filing a lawsuit against a prominent Democratic politician targeting a practice that has long been common in the political world.

According to the complaint, the commercial was a "smear ad" against Roy Blunt, the Republican nominee for the Missouri senate seat. The spot (entitled "Clean up the House") used footage in a June 15, 2006 interview conducted with Blunt by "Fox News Sunday" host Wallace.

In the ad, Wallace addresses Blunt and says, "You just said a moment ago that you have to show that you’re the party of reform but some question whether you are the man to do that. In 2002, you tried to insert language into the Homeland Security Act to help Phillip Morris tobacco [company] while you were dating that company’s lobbyist. And your campaign committee’s paid $485,000 to a firm linked to lobbyist Jack Abramoff.”

Wallace then asks Blunt, "Are you the one to clean up the house?"

The ad has already been taken down from of Carnahan's website with the message: "The interview with Roy Blunt that Fox News doesn't want you to see has been temporarily removed."

YouTube has also pulled the advertisement after being served a takedown notice by Fox.

Fox News claims that the "verbatim reproduction" of the interview without consent "(1) allows Defendant to profit commercially without paying the traditional price; (2) causes substantial harm to the value of the FNS Interview, and (3) was based upon the unique expressive content of the FNS Interview."

The cable news network says that by using the interview, "Defendant harmed the value of the original work by compromising its apparent objectivity."

The Carnahan campaign wasn't immediately available to offer a response, but we're betting it will try to assert a "fair use" defense. Showcasing media interviews in campaign commercials is common and has been assumed to be appropriately in-bounds.

The subject of "fair use" has been a hot topic in Fox News circles in the past year. In an interview last November, Murdoch claimed that courts would eventually bar "fair use" as a legal doctrine, but the network has used it on a couple of occasions to defend itself in lawsuits against alleged misappropriation of the copyright of others. 

We'll have more on this soon.

UPDATE: Here's the video in question.

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The Hollywood Reporter
The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to Matthew.Belloni@thr.com

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