May I claim fair use for public commentary of a political ad?

Question

Preface

I am not a legal professional

I know that fair use is such an ambiguous area.

Hypothetical Scenario

I want to publish (online) a marked up copy of a political candidate's campaign advertising (postcard mailer) for the purpose of public commentary of his claims, but I don't want to get sued for copyright infringement (the candidate is a real politician ... if you know what I mean).

Questions

1. Is a campaign mailer copyrighted?
2. Have there been any court decisions specifically for the fair use of a copyrighted campaign mailer?

Possible Answer

1. If I had to guess, I would say that: yes it is copyrighted. Specifically: the photography and layout.
   1. I think it would be legal to quote sections of the text (How else would I be able to make commentary?).
   2. I suppose the legal question would be: is the reproduction of the ad necessary for making the public commentary. I could see a court deciding "no, textual citations is sufficient". I could also see a court saying that "yes, the visual representation of the copyrighted ad is necessary to make the commentary".

(Again I'm not a lawyer or law student)

Research

I found this during my Internet research, but none of the examples were for public commentary of mailers.

Answer 1

This is pretty solid fair use territory.

The court will consider how much you copied and whether you needed to, but I don't think they'd think you crossed the line with these facts. Even if they did, that's just one of four factors, and the others generally work in your favor.

For a similar case in a New Hampshire governor's race, check out Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F.Supp. 957 (D. N.H., 1978).

Answer 2

First of all, the words, the images, the layout, and the totality of the original mailer are all protected by copyright. You may not reproduce any of them without permission, unless fair use, or another defense, applies.

Making comments on a published work is the classic reason for fair use. It is exactly what is meant by a "transformative use". The reader of the commentary needs to understand what is being commented on, and quoting the source text for this purpose is normally fair use under US law.

Note that quoting a long text or passage with a single brief comment or a few short comments might not qualify -- if might be taken by the court as an attempt to infringe the copyright with a token comment as a fig leaf. The purpose of the new publication should clearly be the commentary, not reproduction of the original. Given the facts as you state them, this will probably not be an issue. But to be quite safe, consult a lawyer with expertise in IP issues and specifically in fair use issues.

In general, you should not reproduce more of the original than is needed to make your commentary clear and in context. But if you are makign extensive comments on a short text such as a mailer or brochure, you may have good reason to quote the entire original.

If you are not selling your comments, but are posting them for political effect, that will tilt another factor of the fair-use test in your favor, but the "copy no more than you need" and "transformative use" issues would be most important in this case, i would think. Again, check with a lawyer to be sure.

Note that fair use is a very specifically US legal concept, and copyright law for a similar situation in a different country will be significantly different.