Democrat fights back against Fox News lawsuit

By Eriq Gardner

EXCLUSIVE: Last month, Fox News filed an unprecedented lawsuit against Democratic senatorial candidate Robin Carnahan, claiming she violated its copyright by using a Fox News clip in a campaign commercial against her challenger.

Now, Carnahan has struck back, telling a Missouri District Court that Fox News sued before properly registering copyright on the clip.

The Carnahan camp submitted a motion to dismiss the lawsuit on Friday, arguing that the popular cable news network was premature in initiating its copyright claim.

Carnahan's lawyers say this is "more than a technical failure." Instead, the campaign contends that Fox couldn't complete a copyright application because it would have trouble claiming copyright on all elements of the clip that Carnahan used. The footage itself, it turns out, incorporates an image first broadcast on C-SPAN. The campaign says this may be proof that Fox abused the copyright registration process and filed a frivolous claim in bad faith.

Fox News' lawsuit was filed on Sept 15, targeting a so-called "smear ad" by Carnahan against Roy Blunt, the Republican nominee for U.S. Senate in Missouri. In Carnahan's ad, she uses footage from a June 15, 2006 "Fox News Sunday" interview conducted with Blunt by co-plaintiff Chris Wallace. 

Even though the lawsuit was filed on Sept 15, Fox News hadn't yet applied to register the copyright on the clip. After litigation commenced, Fox News applied for copyright registration online. The Copyright Office allegedly didn't receive deposit materials necessary until September 20 and didn't make the registration publicly available until September 24.

Failure on Fox News' part to register copyright before filing a lawsuit would be somewhat surprising, but hardly unprecedented. For all the talk these days about the importance of copyright protection, Hollywood studios and big copyright owners can often be fairly lackadaisical when it comes to spending $35 to do such a formality as registering copyright on a work. 

Whether or not copyright owners need to register copyright before launching a lawsuit has been a hot subject of late in various court cases, including the recent Supreme Court case, Reed Elsevier v. Muchnick. In general, original authorship confers copyright regardless of registration, but failure to complete registration with the U.S. Copyright Office can impede the ability to sue infringers and/or collect damages. The 8th Circuit (where Fox News is battling Carnahan) is pretty unsettled on this issue.

In its motion to dismiss, the Carnahan campaign believes this procedural technicality is enough to knock out Fox News' lawsuit.

And in supporting papers, Carnahan raises another big issue. 

The campaign intends to raise a "fair use" defense of Fox' copyright claims. The defense may be buttressed by the fact that in Fox's supposedly copyrighted material, Fox News uses C-Span footage for approximately half of the length of the 24-second clip.

C-SPAN's contract with the House of Representatives to broadcast proceedings stipulates that its footage becomes public domain material. In other words, the argument is that Fox is perfectly within its right to use a C-SPAN image of Roy Blunt on the House floor, but can't claim copyright over it, and it certainly can't sue another for using it.

According to papers submitted by the Carnahan's campaign:

"Indeed, it is highly relevant, in the opinion of the Carnahan Campaign, not only that it used a very small portion of the copyrighted program (about 24 seconds from an hour-long program, less than 1% of the program), but that 50% of even that small segment was dominated by a public domain photograph. Thus, if the Fox Network has accurately disclosed on its copyright application its use of public domain materials, its submission of the copyright registration will materially aid consideration of the Carnahan Campaign's fair use defense. Alternatively, if the Fox Network has not disclosed its use of public domain and third party copyright materials, as appears from the tardy copyright registration form that the Carnahan Campaign was able to find recently, that is also highly relevant..."

Is Fox News inappropriately exploiting material in the public domain to file an abusive copyright claim and interfere with one of the most important Senate races in the nation? That's what Carnahan's camp says. It's up to a Missouri judge give a more definitive answer.